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 wage 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…]

Court Holds Individual Supervisor Liable under Family and Medical Leave Act

In a case of first impression in Massachusetts, a federal judge ruled that individual supervisors can be personally liable to employees for violations of the Family and Medical Leave Act.

The employee involved claimed he was treated differently at work and retaliated against in part because he requested medical leave. He sued both his employer and his immediate supervisor despite the fact that the FMLA requires only ‘employers’ to provide certain leave rights to workers. The supervisor’s motion to dismiss on this ground – he is not, he argued, an employer, and lawsuits against individuals are not authorized by the FMLA – was denied by the court, which cited to higher court interpretation of the Fair Labor Standards Act, a federal law whose definition of the term “employer” is almost identical to that in the FMLA.

The decision serves as a warning to managers and others to pay close attention to their companies’ conduct in cases that might implicate the FMLA. The law applies to employers of greater than 50 employees, and to workers who work at least 1250 hours in a prior year. It permits qualified employees to take unpaid leaves of absence for their own health reasons and those of certain close relatives. Massachusetts employers should also note that the Commonwealth provides similar protections to employees of smaller companies.

New Year Brings Renewed Efforts to Pass Non-compete Legislation in Massachusetts

Proponents in the Massachusetts Legislature may have lost several battles, but they have not given up the war. Early in the current legislative session, no fewer than six proposed laws to regulate noncompetition agreements were introduced. All were referred to one committee or another, where each is now under review. Given the past history of legislative failure and the varied approaches sponsors are taking in 2017, it’s hard to say whether a law on noncompetition agreements will ever be reported to the House or Senate floor for an up or down vote. If one is, it will likely contain several of the following limitations, each of which appears in one proposed law or another.

  • A requirement that noncompetition agreements be written between employers and employees only, and that workers receive them at least 10 business days before beginning a job.
  • If a non-compete is signed after employment begins, payment to the employee of something more than continued work.
  • Expiration of agreements that are not reviewed and renewed at least every three or five years.
  • A limit on restrictive periods to anywhere from 3 months to one year, with exceptions, perhaps, for bad actors that could extend restrictive terms to two years.
  • A requirement of formal written notice to employees of an intent to enforce a covenant no later than 10 days after employment ends.
  • Limits on classes of workers against which noncompetition agreements can be enforced.
  • Rules requiring that employees be paid during any noncompetition period.

One proposal is an outlier and would ban noncompetition agreements altogether. It would not, however, restrict employers from enforcing covenants that restrict solicitation of employees or customers. Neither would it limit non-disclosure agreements, forfeiture agreements, or non-competes that are formed in connection with the sale of a business.

Employer Learns Reasonable Accommodation Lesson that’s Instructive to All

The Supreme Judicial Court recently clarified the legal hurdles employers must satisfy when defending claims that they failed to reasonably accommodate their disabled employees. In doing so, it gave one employer a lesson that all will be well-advised to pay attention to.

The case involved a police officer who suffered a head injury. Though he contended he remained capable of performing patrol officer duties without posing an unreasonable risk of injury to himself or others, his department disagreed. It confined him to desk duty, then defended his lawsuit claiming, in effect, that it acted in a good faith belief that the officer could not perform the essential functions of his patrol job. After a superior court judge granted the department summary judgment, the SJC reversed. It held that the issue is not whether an employer in such circumstances acts in good faith — something an employee will have an extremely difficult time disproving — but whether the employee demonstrates he/she can do the relevant job with reasonable accommodation. The department now faces a jury trial on this relatively narrow and perhaps difficult question.

The case illustrates a common problem employers face in handicap cases — a failure to properly understand their duties to reasonably accommodate disabled workers. The fact is that workers must be accommodated whenever reasonably possible, and employers should consider this carefully and thoroughly before denying accommodation requests. Among other things, they should fully review all possible job adjustments and engage in meaningful discussions with their employees. Only when no accommodation is possible or the ones that do exist impose undue hardship should employers deny their employees requests. Such decisions should never be made lightly.

MCAD Decision: Employer Duty to Reasonably Accommodate Handicapped Employees is Extremely Broad

In the usual case, employers that receive reasonable accommodation requests from their employees try to help. They may adjust a work schedule, grant a leave of absence, or even modify job duties. Too often, however, those same employers fail to grasp the broad scope of their ongoing duties to accommodate. They reach what they perceive as an end point based on their own interpretations of what’s reasonable, then refuse to help workers further. Decisions like that have a high potential to lead them into hot legal waters.

A recent Massachusetts Commission Against Discrimination (MCAD) decision illustrates this point. The employer involved believed it bent over backwards, as it were, to help its employee. It gave her 12 weeks of FMLA leave, 23 weeks of part-time work, job relocation, and adjustments to avoid heavy lifting. Despite the seeming generosity of these accommodations — a fact expressly noted by the MCAD in its decision — the employer was tripped up when it refused to extend part-time work for three additional weeks so its employee could complete physical therapy and, hopefully, return to full-time work. Because the employer could not demonstrate that the continued leave would impose an undue hardship, it violated the Massachusetts anti-discrimination statute. It was ordered to pay damages to its former employee despite the fact that she did not recover sufficiently to work full-time as hoped.

The lesson for employers here is patent. Reasonable accommodation is an ongoing and fungible process that requires regular reassessment of workplace requirements and employee needs. Granting a work adjustment is not alone enough to satisfy the law, which requires an interactive engagement with employees in search of accommodations that are reasonable and appropriate under given circumstances. Employers who fail to understand that process as they seek to themselves decide what’s reasonable and what is not run the risk of lawsuits. In most cases, those suits can be avoided by careful consideration of what the law requires.