Articles Posted in Employment Law

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In late November, a federal district court in Texas enjoined the Department of Labor from implementing and enforcing a new rule that would have made it more difficult for employers to claim that workers do not qualify for overtime pay.  But the Texas court may not have had the power to apply its order nationwide, and Massachusetts employees may still be able to collect overtime under the new rule.

Under the Federal Labor Standards Act, every employee must be paid a minimum hourly wage.  Employees are also entitled to overtime pay at one and a half times that rate for all hours worked above forty per week.  However, the statute exempts certain types of jobs from the requirement to pay overtime.  One of those exemptions is for any work done in a “bona fide executive, administrative, or professional capacity,” and is sometimes referred to as the “white collar exemption.” The statute grants the Department of Labor the authority to issue rules defining what exactly qualifies as a “white collar” job. Since 1940, the Department has defined the exemption, in part, by setting a minimum salary cap under which all workers must be paid overtime – in other words, anyone paid less than that set figure cannot qualify as an exempt “executive, administrative, or professional” employee.  In 2014, after extensive notice and comment from outside stakeholders, the Department of Labor raised the salary cap from $23,660 to $47,476.  The rule was set to go into effect on December 1, and experts estimated that more than 4 million additional workers would now qualify for overtime pay. Continue reading

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On August 1, 2016, Massachusetts passed an historic revision to its Equal Pay Act. The new law, called An Act to Establish Pay Equity (“the Act”), strengthened the existing legislation in a number of key ways, as we discussed in detail in a previous blog posting. Specifically, the law: broadens the definition of “comparable work,” making it harder for employers to distinguish between work on the basis of job titles alone; prohibits employers from reducing seniority for employees who took protected parental, family, or medical leave; extends the statute of limitations from one year to three years (which means employees who received unequal pay can recover up to three years’ worth of the salary differential, plus liquidated damages for that same amount); prohibits employers from asking about a prospective employee’s salary history prior to making an offer of employment and negotiating a salary; and does not allow employers to prohibit employees from talking about their salaries with coworkers. As with the previous version of the law, it is still illegal to retaliate against someone for asserting their rights under this Act. The amended statute also explicitly provides legal protections for employers who can show their good faith efforts to comply with the law.

The new law may require some sizeable shifts in the way that courts, employers, and employees look at the concept of “equal pay for equal work.” Change doesn’t happen overnight, and the new law is going to require employers to make several changes to their budgets, hiring practices, and office culture. These changes are going to take time. Because the new law does not go into effect until July 1, 2018, employers have nearly two years to get familiar with the law, implement changes, and make sure they aren’t caught flatfooted when July 2018 rolls around, and employees can start recovering 3 years’ worth of salary discrepancies, plus liquidated damages, and attorney fees for lingering salary inequality.

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More than one in six American employees provides care or assistance for an elderly or disabled family member or friend. Caregiving responsibilities cut across socioeconomic and demographic groups, although women and low-income individuals still assume a disproportionate share of such responsibilities.  One in seven Americans is currently age 65 or older, but that number is projected to increase to one in five Americans by 2040.  As the population ages, the number of employees with caregiving responsibilities is only likely to grow.

The Equal Employment Opportunity Commission (EEOC) recognizes that employees with caregiving responsibilities face discrimination in the workplace related to these responsibilities.  For example, an employee may be prevented from taking leave to which she is entitled or punished when she exercises her right to such leave; an employee may be penalized for his association with a disabled employee; or an employee may be stereotyped as lazy or uncommitted to her job merely due to her caregiving responsibilities.

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Among lawyers who represent employees in discrimination lawsuits, the most maligned rule of civil procedure is Rule 56, which governs summary judgment—a time-consuming, expensive, and frequently unfairly applied procedure in which judges decide cases on paper instead of allowing juries to hear the parties’ evidence.  In Massachusetts, the Supreme Judicial Court’s recent decision in Bulwer v. Mount Auburn Hospital should help to discourage employers from filing motions for summary judgment, and help plaintiffs to get their cases before a jury.

Motions for summary judgment ask the court to enter judgment for a party prior to trial and without allowing a jury to hear the evidence.  Either side can make such a motion, and in cases where the parties agree on the basic facts, summary judgment can be a useful tool for resolving cases that turn purely on a question of law without expending resources on a full trial.  In the practice of employment law, though, the employment defense bar devoted to protecting companies from discrimination claims has successfully perverted summary judgment into a tool for taking the ultimate contested issue of fact—whether the employer chose to fire or otherwise take action against the plaintiff because of his or her race, gender, sexual orientation, disability, or age—away from the jury.  Instead, employment defense lawyers ask judges to answer that question based on a paper record, depriving the plaintiff of the chance to tell his or her story.  Judges, unfortunately, have been all too eager to accept the invitation to substitute their own judgment of the evidence for that of a jury, and summary judgment has become an important hurdle for many employment plaintiffs—one that can be difficult and costly to surmount.

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Massachusetts is one step closer to a strengthened equal pay law after the State Senate passed equal pay legislation in late January.  The bill, which now goes to the House of Representatives for review, seeks to address the continuing wage gap between men and women.  Although Massachusetts adopted its first-in-the-nation equal pay act in 1945, women in Massachusetts still earn approximately 80 percent of what men earn.  Women of color earn even less: African-American women earn 66 cents on the dollar, while Latina women earn 54 cents on the dollar compared to men.  An analysis by the Institute for Women’s Policy Research has concluded that Massachusetts will not close the pay gap until 2058.

The proposed new law seeks to accelerate the rate of change by making three key updates to the Massachusetts Equal Pay Act (“MEPA”).  First, the legislation broadens the definition of “comparable work” by explaining that “comparable work” is any work that is “substantially similar” in content and requires “substantially similar” skill, effort, and responsibility, performed under similar working conditions.  Moreover, employers cannot rely solely on job titles or descriptions to determine whether work is comparable.  If adopted, this new definition would overrule the narrower “comparable work” definition created by the Supreme Judicial Court in two decisions issued in the mid-nineties in the same case, Jancey v. School Committee of Everett.  Those decisions – the first to squarely interpret “comparable work” in the context of the state’s equal pay act – failed, as the dissenting justices noted in Jancey II, to look “beyond job labels” and perceptions of job differences “that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.”  By moving away from the Jancey definitions, the new legislation permits a broader analysis of whether work is truly comparable.

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This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace.  For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.

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Whole Foods, a major grocery store chain, has a company-wide policy that prohibits its employees from making any recording—audio or video—and from taking any photographs in any area of a Whole Foods store. But a recent decision by the National Labor Relations Board (NLRB) might require Whole Foods to make serious changes to its policy, in order to make sure that it isn’t trampling on employee rights under the federal National Labor Relations Act (NLRA). We are discussing the impact of this decision in two posts. This post explains the NLRB’s decision and what it may mean for employees in states where no other law prohibits such recordings. For Part Two of this series, click here.

The NLRB is the body tasked with interpreting the NLRA. And it recently sided with the employees who challenged Whole Foods’ policy on recordings. It determined that the policy violated the Act because it interfered with employees’ rights under Section 7 of the Act, which grants employees the right to join together to advance their interests. The NLRB appeared to concede that the Whole Foods rule did not explicitly restrict activities protected by Section 7 of the NLRA, but held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling effect on employees’ exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overbroad recording policy.

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I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future.  At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan.  In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case.  While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes).  Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy.  The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

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On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women.  In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring.  Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010.  The BPD hires candidates by considering the following groups in order.  First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class).  Then the department turns to a “main certification” list.  Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department.  The next category is for those with a preferred hiring status, such as veterans.  The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam.  Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

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The Supreme Court has recently been quite receptive to litigants asserting their rights to religious freedom. (For Exhibit A, see Burwell v. Hobby Lobby.) On June 1, the Court in EEOC v. Abercrombie & Fitch applied that pro-religion perspective in the employment discrimination context and took a fairly strong stand against religion-based discrimination. The Court held that employers cannot hide behind facially neutral policies where religious practices are concerned. Rather, it stated that religious practices must be given “favored treatment,” and a failure to accommodate religious practices constitutes intentional discrimination under federal law, subjecting employers to damages.

In this case, a woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She is a practicing Muslim and wears a headscarf. The assistant manager who interviewed her would have hired her, but was not sure whether the headscarf would violate a store policy against wearing “caps” while on the job. The assistant manager believed (correctly) that the headscarf was religious in nature, but did not ask Elauf whether she would need an accommodation. A district manager said that any headwear, religious or not, would violate the policy, and Elauf was not hired. A lower court found this discriminatory and awarded the EEOC (on Elauf’s behalf) $20,000 in damages. The Court of Appeals reversed, holding that, to be held liable on a failure to accommodate claim, the employer must have “actual knowledge” that the employee (or prospective employee) would need a religious accommodation.

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