Last week, the Trump administration finalized a rule that narrows the definition of “joint employer” under the Federal Labor Standards Act and will make it harder for millions of workers to combat wage theft. Under the Obama administration, the federal Department of Labor clarified that more than one company could be held liable for wage violations when they were “joint employers” of an employee; the critical question was the worker’s level of “economic dependence” on a company. That rule allowed courts to conduct a fact-specific inquiry that accounted for workplaces in which more than one company played a role in managing and directing work. The new rule rescinds that more flexible approach and replaces it with a more stringent standard. That means that if more than one company owns or manages your workplace, you now may face challenges in collecting unpaid wages because it will be harder to sue all responsible parties.
By: Jinal Sharma, Legal Intern
Earlier this month, in Capron v. Attorney General of Massachusetts, the Court of Appeals for the First Circuit rejected an au pair agency’s challenge to Massachusetts labor laws, finding that Massachusetts wage and hour laws apply to au pairs. Under the First Circuit’s ruling, that means that au pairs in Massachusetts are now entitled to workplace protections, including minimum wage and overtime pay.
Under the First Circuit’s ruling, Massachusetts will require employers to comply with the Domestic Worker Bill of Rights with respect to au pairs. This means au pairs will be paid minimum wage, which in Massachusetts is rising to $12.75 an hour starting January 1, 2020. An au pair will be considered to be “working” any hours the au pair is required to be on the employer’s premises to provide childcare services. Meal periods, rest periods, and sleep periods are not considered as hours worked only if the au pair is free to leave the premises at their sole discretion. Employers will also be required to pay time-and-a-half for any hours worked over 40 hours/week and to keep records of au pair hours worked. Additionally, au pairs will be entitled to sick leave, worker’s compensation, and notice of why and when the employer might enter the au pair’s living space.
In April, six women filed a proposed class-action gender discrimination, sexual harassment, and pregnancy discrimination lawsuit in federal court in D.C. against international law firm Jones Day, with four of the women proceeding under the pseudonyms “Jane Doe 1-4.” The court initially allowed this, stating “Plaintiffs’ significant interest in maintaining their anonymity at this stage of the litigation is sufficient to overcome any general presumption in favor of open proceedings.” Jones Day vigorously contested this move, arguing that by allowing the women to proceed under pseudonym, the court was giving credence to the women’s argument that Jones Day would retaliate against them if their identities were public, that it prevents the public from assessing the claims, and that because the plaintiffs courted publicity, proceeding under pseudonym was inappropriate. Jones Day also argued that it could not investigate the women’s claims without knowing their identities. In similar gender, pregnancy, and family responsibility discrimination cases filed against Jones Day in 2018 and just this month, the plaintiffs chose to proceed under their own names. Over the course of the litigation, all but one of the anonymous plaintiffs chose to reveal their identities. On August 7, 2019, the judge presiding over the case issued a sealed order requiring the last remaining anonymous plaintiff to reveal her identity. In lieu of revealing her identity, Jane Doe 4 left the lawsuit.
On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. In Nieves Borges v. El Conquistador Partnership, the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.” In other words, past conduct is part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.
The plaintiff in Nieves Borges took a long time to report the harassment he faced. This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job. The plaintiff had worked at his company as a food service manager for twenty-two years when he was terminated in July of 2015. During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade: According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manager would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and well after the most severe incident. At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.
We frequently get inquiries from employees who are unsure of their rights regarding cannabis. Their confusion is understandable, since marijuana is very much in a legal gray area. Although possession of any amount of marijuana is a federal crime, Congress and Justice Department priorities have sharply limited enforcement of federal law against most people who have marijuana only for personal use. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. State-licensed dispensaries sell cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well. Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law, and recreational marijuana.
Massachusetts employers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteria. Under federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be permitted to require an applicant to undergo a test for illegal drugs after offering the applicant a job, if the test is relevant to the employee’s ability to perform the job and is applied equally to all employees in the same job category. After an employee has been hired, any drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement to test for marijuana, such as for truck drivers, the federal law would govern.
The Supreme Judicial Court in the recent case of Ferman v. Sturgis Cleaners, Inc. addressed a limited but important question under state law: when an employee brings a claim for violation of the Wage Act or similar statutes and then settles the claim before trial, can the court award attorney’s fees to the employee? This is a common situation because wage cases, like any other civil cases, typically are resolved one way or another before going all the way to trial. The SJC held that, in contrast to federal law, a plaintiff who obtains a favorable settlement is a prevailing party under state law, and therefore can seek attorney’s fees. There are unique aspects of the Wage Act that make settlements especially common, such as mandatory treble damages, but the provision requiring an award of attorney’s fees to prevailing plaintiffs works the same under other employment-related and civil rights statutes. Thus, this decision is likely to be applicable beyond the specific context of the Wage Act.
Last week the Supreme Judicial Court (SJC) issued its decision in Yee v. Massachusetts State Police, an employment discrimination case raising the question of whether denying a police officer a lateral transfer to different troop could be a discriminatory under our state anti-discrimination law. (As a note of disclosure: I wrote an amicus brief on behalf of the Massachusetts Employment Lawyers’ Association and other groups in support of the plaintiff, Lt. Yee.) The SJC reaffirmed that chapter 151B—Massachusetts’ law addressing discrimination in employment—is to be read broadly to protect employees. The Court held that when an employer makes a decision that causes a material disadvantage to an employee in objective aspects of their job, even if the employee doesn’t lose money as a result of the decision, that decision is illegal employment discrimination if it is based on the employee’s membership in a protected class.
On August 10, 2018, Governor Baker signed a new law that, among many other things, restricts and reforms noncompetition agreements, which are commonly used by employers in some sectors of the economy. Noncompetition agreements, or noncompetes, restrict what an individual can do during or after their employment – typically, to prevent them from working for competitors or entering market areas where the employer is already present. Although reasonable noncompetes sometimes serve to protect legitimate business interests of an employer, they can also be used to punish employees who decide to leave, or even lock them into their current employers by severely limiting permissible opportunities to work elsewhere. In one egregious case, the sandwich shop Jimmy John’s attempted to use noncompetition agreements to stop fast food workers from leaving for competitors, although they stopped this practice after investigations by multiple state attorneys general.
Zalkind Law’s David Russcol participated in a Wage Theft Legal Clinic yesterday through the Volunteer Lawyers Project. There were many people who had not been paid fairly by their employers. VLP and other community organizations are helping them get legal assistance. Thanks to the MA Attorney General’s Office and Suffolk University Law School for organizing and hosting!
On June 28, 2018, Charlie Baker signed An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, part of a “grand bargain” between social justice advocates who pushed for paid family leave and a higher minimum wage and retail business representatives who urged a lower sales tax.
With passage of this law, Massachusetts is now the sixth state (plus Washington D.C.) to offer paid family and medical leave to employees. It will also outdo the U.S., which is currently the only country in the 41 Organization for Economic Cooperation and Development (OECD) and European Union nations that does not offer any paid family or medical leave.
In this post, I will focus on the family and medical leave portion of the new law, which will take effect in 2021, and the legal protections it will provide for Massachusetts employees.