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.

EEOC Working on New Anti-Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) is currently working on new guidance to help analyze and decide claims involving harassment in the workplace. The new rules promise to bolster enforcement against harassers as it follows a task force finding that the issue remains a serious problem in the American workplace. The new guidance will explain the law as interpreted by courts and serve as a reference for EEOC enforcement staff and other federal officials. It is likely to be used by courts and litigants as well.

The guidance will likely deal with harassment based on race, color, religion, sex, national origin, disability, age and genetic information. There is no current timetable for its release. The EEOC recently extended the time period for comments on it March 21, 2017. A copy of the proposal can be found at www.regulations.gov/document?D=EEOC-2016-0009-0001.

Good Faith Interactive Process is Key to Properly Handling Accommodation Issues

Most employers know (though some, incredibly, still do not) that they are obligated by law to reasonably accommodate disabled employees. After that, there are several areas of knowledge breakdown that form a theme for cases in litigation. Among them is a rule that is commonly overlooked: the requirement that employers engage in good faith interactions with disabled employees to find reasonable accommodations that will allow them to perform their jobs. Doing so is critical to effectively preventing or defending against handicap discrimination lawsuits.

After acknowledging an employee’s handicap, a process that is not always as simple as it may seem, employers on notice that an accommodation is needed have the duty to figure out what can be done. Commonly, they treat it as a one way street along which they alone consider potential work changes and decide whether they can be implemented. This approach can work as long a reasonable accommodation is identified, accepted by the employee involved, and implemented. When this  doesn’t happen for one reason or another, employers need to be sure they turn to the employee for and engage in a good faith interaction aimed at exploring accommodation options and finding one that will work. This normally involves a review of medical information, meeting with the employee, considering which job duties are essential, and exploring all reasonable options for helping the employee perform them. Employers should be careful that, while working with employees in this area, they are not counter-acting that effort by disciplining or mistreating them actions that somehow relate to the disability in question.

EEOC Urges Employers to Improve Workplace Anti-Harassment Training

Calling workplace harassment an “all too persistent problem,” two commissioners from the Equal Employment Opportunity Commission (EEOC) are calling on employers to rework and improve their anti-harassment training programs. The commissioners headed a task force that evaluated sexual harassment in the work place. The EEOC’s chairperson seems to agree that more and better training is required. She said, “I thank Commissioners Feldbum and Lipnic and the members of the Select Task Force for their work to combat the persistent problem of workplace harassment. Preventing harassment from occurring in the first place is far preferable to remedying its consequences.”

The EEOC was created by the Civil Rights Act of 1964. It is charged with addressing workplace discrimination issues. It is the federal equivalent of the Massachusetts Commission Against Discrimination (MCAD), which has the same mission. In Massachusetts, training employees on sex harassment issues is not mandatory but is strongly encouraged. Whether and to what extent employers accused of sex harassment have done so is often an important issue at MCAD hearings.

Employers will be well-served to examine their workforces and consider how best to train their employees. Anti-harassment training should be tailored to the needs of individual businesses. Its goal should be to help employees understand what sexual harassment is, how it can damage individuals and companies, and how to deal with it as it arises. No anti-harassment program can be effective unless employees believe their employers are serious about it and are consequently unafraid to use complaint and other systems without fear of retaliation.

Massachusetts Legislators Debate Bill to Provide 12 Weeks of Paid Leave for Employees

The Massachusetts state legislature is considering a bill that would not only provide family leave for employees who now are not entitled to it, but would set up a fund to pay at least part of their lost wages.

Titled “An Act establishing a family and medical leave and temporary disability leave insurance program,” the bill has numerous sponsors in both the House and Senate.  It is currently being considered by the Labor and Workforce Development Committee and is due to be reported out on May 16. Citing the large number of Massachusetts employees who are not entitled to leave provided by the Family and Medical Leave Act (FMLA) due to company size – and decrying the fact that FMLA leave is unpaid and thus difficult for many employees to use in any event – the bill’s sponsors contend that the new law is needed to protect employees who face serious personal or family emergencies.  Among its provisions as currently formulated are the following:

  1. 12 weeks of job protected leave for serious personal /family illness or to care for a newborn, adopted or foster child;
  2. Partial wage replacement in the form of temporary disability coverage that will be funded by employer contributions;
  3. Continued coverage by employers for health care on terms in effect for employees before they begin a leave; and
  4. A one-week waiting period in cases of personal illness and an exemption from funding obligations for employers who provide paid leave benefits, both of which are aimed at controlling costs.

Eligibility for the Act’s benefits would begin after an employee works 1,250 hours for his/her employer. Penalizing employees who take leave would be prohibited. If enacted, the new law will be administered by the Massachusetts Commission Against Discrimination (MCAD). Violators will be subject to the same penalties as apply in discrimination cases generally, including payment of an affected employee’s lost wages, emotional distress and legal fees.

Massachusetts Amends Maternity Leave Act to Cover Both Men and Women

It’s official: men are equal to women when it comes to maternity leave in the Commonwealth. Some 6-plus years after the Massachusetts Commission Against Discrimination (MCAD) announced that it would treat men as entitled to leave under a state maternity leave law that expressly provided it only to women, the legislature finally acted. It amended the Massachusetts Maternity Leave Act to apply to every employee, not just those who happen to be “female.”

The amendments to Mass. Gen. L. ch. 149, §105D were signed by outgoing Governor Deval Patrick on January 7, just before he left office; they will take effect on April 7, 2015. In addition to making the statute gender neutral, they broaden the purposes for which leave may be taken by replacing the phrase “for the purposes of giving birth or for adopting a child” with  broader language that covers both adoption placement and “placement of a child with an employee pursuant to a court order.” The statute continues to permit up to 8 weeks of leave time. It applies to employers with 6 or more workers, and leave may be with or without pay, in employer discretion.

Employers should review policies for compliance going forward. The law requires covered employers to post notices describing maternity leave rights. It permits employees to pursue legal action with the MCAD for failures to comply with its terms.

New Domestic Violence Law Provides 15 Days of Leave to Covered Employees

Employees of large companies who experience domestic violence, either directly or through family members, now enjoy greater legal protection as the recently enacted domestic violence protection law enters its first full year. The new law, which took effect last August, requires employers of 50 or more workers to provide up to 15 days of leave annually to allow employees to address domestic violence issues.

To qualify for this benefit, employees must first use all vacation, personal or sick leave available to them to cover a domestic violence-related absence. They must provide advance notice of their absences, though they can avoid this requirement when a threat of imminent danger exists. Domestic violence leave can be used when three conditions are met: a situation of domestic violence exists, as defined by the statute; the leave is used to address the effects of the violence; and the employee is not the perpetrator of the domestic violence. Leave can be paid or unpaid, in employers’ discretion. [Read more…]

Government Agency Learns Hard Way the Potential Cost of Retaliating for a Wage Complaint

Not even a government agency, it seems, can escape the potentially dire consequences of violating the Massachusetts Wage Act, even when an employee enjoys civil service protection that many thought, at least, provides the sole remedy for covered workers.

In a decision issued last week, the SJC upheld a large judgment for retaliation against the Attleboro Housing Authority. A jury found that the Authority improperly laid off its employee about a month after he filed a seemingly minor complaint that his hourly pay rate should have been higher than it was. The jury awarded a mere $2,300 in lost wages based on the hourly rate discrepancy, then added $130,000 for retaliatory discharge under the Act. The court tripled both figures and awarded legal fees to the employee, as it must under Mass. Gen. L. ch. 149, s. 150, and the award against the Housing Authority exceeded $400,000 before interest at 12% was added.

The moral of this story is patent: when an employee has made any claim regarding the payment of his/her wages, discretion dictates that employers approach layoffs and other job terminations with extreme caution. In the Attleboro Housing Authority case, the poignancy of this lesson is heightened by the fact that the Authority took the plausible position that the Wage Act did not apply because the employee enjoyed the protection of the civil service system, which provides a wholly separate avenue for redress of job terminations like the one at issue. Both the lower court and the SJC concluded, however, that civil service employees have a choice to pursue their claims under the Wage Act.

Whistle Blowers and Massachusetts Law

When an employee decides it’s time to blow the whistle on employer misconduct or that of a fellow worker, employees are well advised to do a bit of homework first. While it certainly seems like whistle blowers should be protected by the law – and, generally speaking, they are – those protections do not come without rules. Simply put, employees cannot suffer retaliation for reporting certain improprieties at their places of employment but must comply with legal procedures and definitions.

State employees enjoy the protection of a whistle blower statute (Ch. 149, §185 of the General Laws). It prevents employers from firing, suspending, demoting or otherwise punishing them for reporting what employees reasonably believe to be violations of laws, regulations, or other matters an employee “reasonably believes poses a risk to public health, safety or the environment.” Except in limited circumstances, however, employees must first report any such violation to their supervisor’s attention in writing. As one worker recently found out, the internal report requirement is strictly construed – her case claiming she was forced to resign after reporting records falsification was dismissed because she did not report the problem in writing before she sued.

For others, Massachusetts interpretative law has carved out an exception to the at-will rule that protects employees who report crimes, either internally or to outside authorities. Again, employees who feel compelled to blow the whistle on such conduct should take care to ensure they are in fact reporting a violation of law before they do so. In general, Massachusetts employers can terminate their workers for any reason or no reason – a complaint about a company policy or rule, e.g., differs materially from a complaint about a crime. The whistle blower exception for privately employed individuals should be examined carefully before action that might imperil future employment is undertaken.

Employers Need Not Pay Legal Fees to Discrimination Employees who Don’t Win Damages

Employers facing discrimination lawsuits got a bit of help from the Massachusetts Court of Appeals recently when it held that employees cannot force them to repay their legal fees unless they do more than win their cases at trial. In a somewhat surprising decision, the Court concluded that proving discrimination is not enough. The law, they held, also requires employees to win some sort of tangible damage award as a result of the discrimination.

Damages sufficient to require a legal fee award can come in two types – measurable, such as lost wages, and non-measurable, such as a promotion order. “[T]he important distinction is between ‘actual but not clearly measurable damages or loss, contrasted with no actual damage or loss,’” the court conclude in Kiely v. Teradyne, Inc. “Actual but not clearly measurable damages or loss, like injunctive relief, would entitle a party to attorney’s fees. By contrast, an absence of actual damages or loss would not.”

The case involved a challenge to a superior court’s judge’s decision to both vacate a punitive damages jury award and deny a winning plaintiff’s legal fee request. The former employee won her retaliation case but did not receive financial damages or equitable relief. The jury did, however, award her $1.1 million in punitive damages, a type intended to punish employers for outrageous conduct. The anti-discrimination statute, Chapter 151B, generally requires losing employers to repay the legal fees of winning employees at the Massachusetts Commission Against Discrimination or in state court lawsuits. Fee awards against employers often reach $100,000 or more.