Articles Posted in Employment Law

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It’s not as easy as it used to be to answer the question of who’s the boss.  Many employees survive on a patchwork of part-time jobs; the gig economy is growing fast enough to double in the next few years.  Indeed, a recent study released by  Upwork and the Freelancers Union predicts that most workers will be freelancers by the years 2020.  As facts in the workplace evolve, so must the law.

That’s exactly what happened last fall in  Gallagher v. Chambers, a case decided by the Massachusetts Appeals Court.  There, the Court clarified the test for identifying an employer under the Massachusetts Wage Act.  Previously, courts had applied a common-law set of factors that led to inconsistent results in lower courts, which in some cases dismissed corporate defendants even though those entities benefitted from a plaintiff’s work.  In Gallagher, a home health aide sued to recover for unpaid overtime wages.  She named as defendants both her former customer – who had overseen her work on a daily basis – and the agency that had helped her find the placement and processed her paychecks.  That raised the question of whether both were really her “employers” for purposes of the Wage Act.   The Appeals Court took the opportunity to refine the rule for answering that question.

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On January 29, the Supreme Judicial Court in Mui v. Massachusetts Port Authority held that accrued but unused sick pay is not subject to the state Wage Act, even if the employer has agreed to pay out some or all of the sick pay when an employee separates from employment. While the result may make sense on the facts of this case, and is generally consistent with the way the Wage Act is currently drafted, the Court’s decision sweeps more broadly than it needs to. It removes a powerful incentive for employers to promptly pay compensation that is due to some employees at the end of their employment.

In Mui, MassPort (the agency responsible for Logan Airport, among other things) began the process of discharging the plaintiff, a longtime employee, after he made an apparent suicide attempt that caused property damage. Before that process completed, Mui retired from MassPort, and an arbitrator later decided that MassPort could not fire him because he had already retired. MassPort had a policy of paying a portion of accrued but unused sick time to employees upon their departure, unless they were discharged for cause. MassPort at least initially refused to give Mui his sick pay (which amounted to about $47,000) because it claimed he had been discharged for cause. Continue reading

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In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.

The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq. Continue reading

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In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.

In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.

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Yesterday the Massachusetts Senate unanimously passed Senate Bill 2093, the Pregnant Workers Fairness Act (PWFA). Last month the House unanimously passed a similar bill, H. 3680. The PWFA is headed to Governor Charlie Baker, who has indicated he will sign it.

What is the Pregnant Workers Fairness Act?

The PWFA will amend Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law will also require employers to grant their employees reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. The law lists examples of the types of accommodations that might be required: more frequent breaks, time off to recover from childbirth, light duty, modification of equipment or seating, modified work schedules, and a private space for pumping breast milk. While the law allows employers to require medical documentation for some accommodations, employers are required to provide the following accommodations with no medical documentation: “(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.”  Continue reading

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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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