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Articles Posted in Employment Law

pexels-rfstudio-3825368-scaledTenure is a crucial foundation for academic freedom at colleges and universities. Once professors receive tenure, they have a lifetime job from which it is very difficult for them to be fired. Nonetheless, tenure alone does not insulate a faculty member from institutional pressure. After all, the school still sets pay and benefits, chooses recipients for grants and awards, sets teaching assignments and schedules, and more. Faculty members in the sciences, whose research depends on access to expensive labs and equipment, are particularly dependent on financial support from their institutions. 

In a decision issued in early March in Henry Wortis v. Trustees of Tufts College, the Massachusetts Supreme Judicial Court took on the question of what protections tenure gives professors from pay cuts and loss of access to lab space. The case was brought by eight faculty members at the Tufts University School of Medicine—including Henry Wortis, a Professor of Immunology—who were granted tenure at various points between 1970 and 2009. In 2017 and 2019, Tufts adopted new policies under which professors who failed to cover a certain percentage of their salaries with external grants could have their pay reduced. These policies resulted in very significant decreases in compensation for the plaintiffs: Wortis’s annual salary, for instance, fell from approximately $190,000 to around $97,000. Many of the plaintiffs also had their appointments reduced to less than full-time, potentially exposing them to tenure revocation procedures. Additionally, in 2016, Tufts also adopted a policy tying the availability of lab space to the coverage of indirect costs by external grant funding brought in by faculty members. Several of the plaintiffs had their lab space reduced under this policy, impeding their ability to conduct research.  

After pursuing an internal grievance procedure, the faculty plaintiffs sued the university in 2019 for breach of contract and other claims, based on both the reduction of the compensation and the loss of lab space. A Superior Court judge granted summary judgment to Tufts on all counts, and the plaintiffs appealed. In an opinion by Justice Scott Kafker, the SJC affirmed the judgement with respect to the lab space issue, but reversed on the issue of compensation, sending the case back to the trial court. 

pexels-cottonbro-studio-5077066-scaledThe ongoing battle over the employment rights of app-based drivers reached a new stage last week, when a group of drivers and union leaders brought a lawsuit to block a new set of ballot measures aimed at exempting app-based drivers from employment protections. 

When workers are categorized as employees, rather than independent contractors, the law requires their employer to provide them with certain benefits and protections. In Massachusetts, the test for determining who is an employee for purposes of the Wage Act is particularly inclusive. In the growing gig economy, providing gig workers with the expansive protections the law grants employees can be costly for employers, which has led to many battles over gig workers’ status.  

In Massachusetts, that battle grew serious in July 2020, when then-Attorney General Maura Healey filed a lawsuit in against Uber and Lyft on behalf of drivers, seeking a declaration that they qualify as employees under the Massachusetts Wage Act. That lawsuit is currently scheduled for trial in May of this year. 

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Massachusetts could become the first state in the country to enact a broad workplace anti-abuse law intended to hold employers liable for perpetuating, condoning, or ignoring psychological abuse at work. On October 10, 2023, Massachusetts had the highest number of advocates in the nation ever testify in front of the legislature in favor of anti-abuse legislation in the workplace. Workers, employment attorneys, human resources professionals and others urged the Massachustts Joint Committee on Labor and Workforce Development to pass the Workplace Psychological Safety Act. The committee has until February to move the proposed bill forward.  

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MA-SJCEarlier this month, the Supreme Judicial heard a case regarding the standard for “Anti-SLAPP” motions. As we have written before, Massachusetts’ Anti-SLAPP law protects people who have engaged in protected speech from lawsuits based on that speech. The statute allows defendants to move to dismiss a lawsuit against them “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Anti-SLAPP motions are particularly important for employees who report illegal and unsafe conduct; those employees need assurances that they will not face retaliatory and costly lawsuits targeting them for their speech.  

The Anti-SLAPP statute provides a means to seek dismissal of a legal claim that is based solely on a party’s “right of petition under the constitution of the United States or of the commonwealth.” The statute instructs that the plaintiff can defeat a motion to dismiss under the Anti-SLAPP suit by showing : (1) the defendant’s exercise of its right to petition didn’t have any basis in fact or law and (2) the defendant’s acts caused actual injury to the plaintiff. 

Since the statute’s passage, courts have grappled with the countervailing constitutional rights at issue when a party files an Anti-SLAPP motion. As the Supreme Judicial Court explained in 2017 in a case called Blanchard, the target of an Anti-SLAPP motion – typically, a plaintiff – also has a constitutional right to use the courts to petition. An Anti-SLAPP dismissal can “potentially infringe” on an “adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning.” To balance these interests, the Blanchard Court adopted an “augmented framework” for evaluating Anti-SLAPP motions. Under Blanchard, the person filing the Anti-SLAPP motion must demonstrate that it is facing a legal claim based “solely” on its “petitioning activities” and not some other basis.  

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This month, the Supreme Judicial Court heard argument in Sutton v. Jordan’s Furniture. This case addresses questions about how commission-based pay plans can be structured to comply with the Wage Act, Overtime, and now-repealed Sunday Pay laws. 

The Statutes and Past Interpretation 

Massachusetts’ overtime statute requires employers to pay employees time and a half for hours worked in excess of forty hours in a work week. Until it was repealed this year, the Sunday Pay statute similarly required a higher rate of pay for hours worked on Sundays. The Massachusetts Wage Act sets out requirements for payment of wages, including promptness, and extends that protection to commissions, which are treated as wages when the commission amount is “definitely determined” and “due and payable.” The Wage Act also prohibits special contracts designed to evade the Wage Act’s requirements. 

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Employees have the benefit of a whole set of laws designed to protect them in the workplace. But what happens when an employer tells a worker that they are an independent contractor, or simply gives that worker a 1099? What you as a worker need to know is that whether you are an employee or an independent contractor doesn’t necessarily depend on what the employer says—it depends on the nature of the work you do. 

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Earlier this month, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments for
Mark A. Adams v. Schneider Electric USA, Inc., an age discrimination lawsuit in which Monica Shah and I filed an amicus brief in support of Adams, on behalf of the Massachusetts Employment Lawyers Association 

The Facts

Adams worked as an electrical engineer at Schneider Electric in Andover, Massachusetts from 2007 to 2017. On January 27, 2017, as part of a reduction-in-force (RIF), Schneider Electric laid off Adams, who was 54 years old at the time. As part of this RIF, Schneider Electric laid off seven other employees, all of whom were over 55 years old. There were two other RIFs at Schneider Electric within a year of Adams’ termination and of the 24 employees laid off, 23 of them were 44 years or older. Adams had strong performance reviews throughout his employment with Schneider Electric and when one of his direct supervisors discovered he was terminated, the supervisor asked for Schneider Electric to bring Adams back because Adams’ absence threatened the success of one of the supervisor’s projects; Schneider Electric declined to re-hire Adams. While Schneider Electric maintains that Adams’ termination of employment had nothing to do with his age and the person who fired Adams acted alone without influence from others at the company, Adams argues that there are several factors surrounding his termination that suggest he was discriminated against because of his age, including a Human Resources employee instructing the decision-maker who fired Adams to consider age when selecting candidates to terminate for the RIF. In addition, there was voluminous e-mail documentation between Schneider Electric employees discussing restructuring tactics that included letting go of older employees to make room for a younger workforce.  

african-american-g55a6d9955_1920In the summer of 2020, the United States was experiencing both the early phase of the COVID-19 pandemic and nation-wide outrage over the police killing of George Floyd. Employees at Whole Foods grocery stores around the country—some Black, some not—began wearing face masks promoting the Black Lives Matter movement. Whole Foods management responded by reprimanding these employees for violating a dress code policy against clothing with messages or logos, even though the policy had never been consistently enforced in the past.  Employees who insisted on wearing the masks were sent home. Eventually, some employees were fired. 

One employee who was fired was Savannah Kinzer, who worked at the River Street Whole Foods store in Cambridge. In July 2020, Kinzer and others from around the country sued Whole Foods in a Massachusetts federal court, alleging racial discrimination and illegal retaliation under Title VII of the Civil Rights Act. On January 23, 2023, Kinzer suffered a defeat when District Court Judge Allison Burroughs, an Obama appointee, granted a motion by Whole Foods for summary judgement. Despite the disappointing outcome, the litigation so far has also prompted positive developments with respect to associational discrimination claims in the First Circuit. 

Phases of the Case 

This week, President Biden signed the Speak Out Act into law, the most recent victory for advocates against workplace sexual assault and sexual harassment. The Speak Out Act makes prior non-disclosure and non-disparagement clauses in agreements (or “NDAs”) unenforceable when the partiespexels-anna-shvets-3727513-scaled later become engaged in a dispute regarding sexual assault or sexual harassment.  

The first substantive section of the Speak Out Act lays out a series of findings regarding sexual assault and sexual harassment that paint a clear picture of the need for the law. As stated by the Act, “eighty-one percent of women and forty-three percent of men have experienced some form of sexual assault or harassment throughout their lifetime,” and “one in three women has faced sexual harassment in the workplace during her career.” Despite these staggering statistics, “an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.” CONTINUE READING ›

pexels-fauxels-3184603-scaledWe have previously written about how Massachusetts law limits non-competition clauses. Non-competition clauses restrict where an employee can work after she leaves a job; an employee agrees in a contract not to work for a competitor for a period of time after she separates from an employer. Under M.G.L. c. 149 § 24L, non-compete agreements signed as a condition of employment must meet certain requirements, including advance notice of the clause, compensation in exchange for accepting the limitation, and the opportunity to consult with counsel. The law also requires that non-competes have a limited duration and scope. Clauses signed after October 2018 must comply with the statute to be enforceable.

But there are other kinds of restrictions that are like non-competes that are not subject to the statute’s requirements. Principal among those are non-solicitation agreements. Non-solicitation clauses restrict who an employee can contact after they leave a job. Non-solicitation clauses can prohibit people from recruiting employees at the prior employer. Clauses can prohibit reaching out to, or doing business with, any customers of the prior employer. Sometimes they are written so broadly that a clause tries to prohibit an employee from even speaking with a former customer or co-worker. Thus, employers sometimes try to use non-solicitation agreements to accomplish what they no longer can through a non-compete clause: The clauses are broad and unlimited; they can be so restrictive about what communications an employee may have, that, in practice, the employee cannot conduct business. Imagine, for example, a seasoned salesperson with a large existent network of customers. As a practical matter, a non-solicitation agreement might bar her from talking to most potential customers in her industry should she leave a job, preventing her from performing any new job she should get that involves sales.

Courts, however, have held overly broad non-solicitation agreements unenforceable. Thus, even absent the protection of a statute, the law still places restrictions on a company to limit a former employee’s communications with former colleagues and customers. A judge in the Massachusetts Superior Court recently noted that non-solicitation agreements “limit competition in a market to sell goods or services to potential customers.” As the Appeals Court has held, a non-solicitation agreement can only be enforced under Massachusetts law to the extent “necessary to protect the employer’s legitimate business interests” and “and only to the extent that it is reasonable in time and space, necessary to protect legitimate interests, and not an obstruction of the public interest.” That means, for example, that a non-solicitation clause that does not have any relationship to protecting an employer’s confidential information, intellectual property, or trade secrets is likely unenforceable. A non-solicitation agreement that is not limited in time or geography is also likely unenforceable.

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