Legislators Consider Law that would Grant Broad Sexual Harassment Powers to Massachusetts Attorney General

If there isn’t already enough for employers to worry about amid the plethora of sexual deviance reports that have hit the media lately, add to the list the prospect of an amended anti-discrimination statute that would give the Massachusetts Attorney General broad investigative powers over all things harassing or discriminatory. If passed, the proposed new law would drastically change the sexual harassment landscape by inserting the power of government into the discrimination law arena in a dramatic new way.

In late January, a bill captioned “An Act to enhance investigations of sexual harassment and discrimination” was introduced by State Senator Cynthia Creem. It proposes to amend Mass. Gen. L. ch. 151B, which already provides remedies against sexual harassment and other discriminatory misconduct, by empowering the Massachusetts Attorney General to investigate those same claims when it sees fit. Tools at the Massachusetts Attorney General’s disposal will include the power to demand production of documents and witnesses for sworn testimony. The office of the Massachusetts Attorney General can use its investigative findings to negotiate resolutions with employers or file suit for injunctive relieve, civil penalties of up to $50,000 per violation of law, and damages that include lost wages, emotional distress, and reimbursement for investigative expenses and legal fees. As an apparent public relations deterrent to sexual harassment, the proposed bill would make findings of potential discrimination made by the Massachusetts Commission Against Discrimination open to public inspection, an event that no employer will want to experience.

Regardless whether the proposal becomes law (it is now being reviewed by a legislative committee), it represents yet another warning about sexual behaviors that employers cannot afford to ignore. Massachusetts anti-discriminations laws already make sexual harassment illegal and require employers to maintain an effective anti-harassment policy that is distributed at least annually to all employees. It also encourages sexual harassment training of employees, especially managers. Given the huge financial stakes in this area, the prevalence of sexually inappropriate behaviors in Massachusetts workplaces, and the encouragement victims are currently receiving to complain about harassment when it occurs, all employers will be well-served by a thorough evaluation of their workplaces and procedures. In many cases, a training program for managers or others will make risk/reward sense.

Massachusetts High Court Clarifies that Sick Leave is not Wages

Though most employment lawyers never thought of accrued sick leave benefits as a wage, it took only one, armed with a big enough sick leave balance, to test the question in Massachusetts’ highest legal venue. To the surprise of few, the law left the Massachusetts Supreme Judicial Court in the same form lawyers and lower court judges have long interpreted it. While accrued sick leave remains a benefit that employers now need to provide under Massachusetts law, it is not a wage that must be paid to departing employees who have accrued it on the company’s books.

The case’s high stakes lend a clue as to why it went as far as it did. At issue was $46,755 in accrued sick leave under a plan at the Massachusetts Port Authority. Though the benefits were ultimately paid to the employee, the check was cut about a year after he retired due to an arbitration proceeding that ultimately went his way. Under the Massachusetts Wage Act, wages due to employees must be paid promptly at departure from employment. The Plaintiff pressed a theory that this provision of the law was broken by the late payment and that he was consequently entitled to three times the amount of  accrued sick pay owed, plus reimbursement for all legal fees he incurred to collect his pay.

The SJC would have none of it, however. It cited to the Act’s definition of the term “wages,” which includes holiday pay, vacation pay and earned commissions but does not mention sick leave benefits. The court then contrasted the purposes of sick and vacation leave policies, noting that only the latter could be used for any purpose. Sick leave generally is not wages as a result, the court concluded, and could not be considered a wage under Massport’s specific policy of paying out accrued, unused sick leave under some circumstances. Those conditions made sick time at Massport a “contingent bonus,” such that it like other bonuses is not a wage covered by the Wage Act.

The case is Mui v. Massachusetts Port Authority, decided January 29, 2018.

Vigilance on Sexual Behaviors is an Essential Tool for Employers

If there’s one thing we’re learning as claims of sexual impropriety continue to grab headlines in workplaces across the country, it’s that employers often don’t effectively address sexual harassment issues until it’s too late. There’s never been much doubt that mistakes in this arena can cost a lot of money. Enter the needs for effective policies surrounding sexual harassment in the workplace and thorough training of managers. How, after all, can employers prevent damaging sexual harassment allegations if their key employees don’t know the signs of trouble and how to deal with them?

One of the big causes of sexual harassment problems in the workplace is a failure to understand that victims of sexual harassment often don’t want to complain and, when they do, frequently give only limited information. There are a variety of reasons for this ranging from fear of retaliation to a hope that bad behaviors will end on their own to a desire to get along with co-workers. When employers don’t realize this, they tend to overlook issues that might be portrayed as less significant than they really are and miss opportunities to resolve sexual harassment before it becomes a costly lawsuit. To avoid that error, employers need to institute zero tolerance policies for sexual behaviors at work and, when even a hint of it comes to their attention, investigate quickly. You never know what you might find.

In fact, workplace investigations of sexual harassment often uncover behaviors that were not explicitly raised by an initial complaint. On appropriate questioning, employees normally expand on how they feel and what they experienced. An investigation might reveal that behaviors are long-standing and practiced by a broader number of employees who are not aware of the dangers that sexual talk or acts present to their employers, even when those behaviors are ‘consensual’ or ‘don’t bother’ other employees. In many cases, sexual joking, e.g., is common at work, yet almost all employees are hesitant to complain to employers even when they are bothered by it. Almost all also have breaking points.

Employers are thus well advised to be sure they understand what goes on in their workplaces. All should review and ensure their sexual harassment policies are strong; make sure all employees get copies of the policy at least once a year; post notices regarding sexual harassment and its remedies; and train all managers, at least, about the basics of sexual harassment and how to spot its signs before things get out of control. Doing all this is not only prudent, it’s almost essential in light of recent sexual harassment stories and their impacts on victims’ understanding both that they are not alone and that protection is available for those who feel compelled to complain.

Hiking of Minimum Wage to $15/Hour Makes its Way toward the Ballot Box for November 2018

Dissatisfied with the recent increase of the Massachusetts minimum wage to $11/hour and its failed efforts to get the state legislature to move the hourly rate to $15, a coalition of community, religious and labor groups has submitted the issue for referendum vote. Assuming the question moves through the process to the November 2018 ballot, Massachusetts voters will decide whether to increase the hourly rate to $15, a move that surely won’t go over well with some business people.

Proponents of the hourly wage increase are unmoved. They believe $15/hour is necessary to allow low paid workers to afford basic necessities such as groceries, housing and heating. As it is, they say, full-time workers earning the current minimum of $11/hour make only about $22,000 per year. About a million Massachusetts workers will benefit if the rate increase is approved, they contend, and most are above the age of 20. They include nursing assistants, childcare providers, and teachers’ aides, the group says. Anticipating objections to the wage hike, the coalition points out that, despite the increase in the minimum wage from $8 to $11 in recent years, the Massachusetts economy continues to grow strongly.

If approved at the ballot box, the minimum wage will increase by $1/hour each year for four years, beginning in 2019. The measure will also increase the minimum tip wage from $3.75 to $9/hour during the same 4-year period. Under Massachusetts law, tipped employees may be paid less than minimum if their hourly rate plus the tips they receive are equal to or exceed the minimum hourly wage. On December 21, 2017, the Massachusetts secretary of state confirmed that enough signatures were submitted to support the ballot measure. The proposed wage increase now moves to the state legislature, which will have the option to approve it prior to any voting by the public. If that does not occur by May 2, 2018 or if the governor fails to sign a passed measure into law, proponents of the minimum wage increase will need to obtain another roughly 11,000 signatures from Massachusetts voters by July 4 to place the question on the 2018 ballot.

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.