Employment Law

App-Based Workers as Employees? Back to the SJC Before Back to the Ballot

Published on: February 12, 2024 | by Jennifer M. Herrmann

The 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.

Massachusetts Proposed Legislation Would Create Broad Workplace Protections Against Bullying and Abuse at Work

Published on: January 29, 2024 | by Lucie Gulino

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.

Supreme Judicial Court to Revisit Anti-SLAPP Standard

Published on: October 19, 2023 | by Ana Muñoz

Earlier 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.

The Supreme Judicial Court Must Clarify What Evidence Plaintiffs Need to Present to Have Discrimination Cases Heard by a Jury

Published on: April 4, 2023 | by Lucie Gulino

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.

Whole Foods Employees Fired for Supporting Black Lives Matter Suffer New Defeat, But Law Evolves on Associational Discrimination

Published on: February 17, 2023 | by Tom Miller

In 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

Know Your Rights: Restrictions on Non-Solicitation Clauses

Published on: November 7, 2022 | by Ana Muñoz

We 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.

“I Quit!” What You Need to Know About the Law Before You Resign

Published on: October 11, 2022 | by Emma Quinn-Judge

If you are an at-will employee, you have the right to quit your job at any time. And there may be compelling reasons to leave immediately. But quitting your job will affect your legal rights, so before you resign, here are some things to consider.

Can I collect unemployment?

You may not be able to collect unemployment if you quit. In Massachusetts, if you choose to resign, you will not be eligible for unemployment unless you show that you left (a) for good cause attributable to your employer; or (b) for urgent and compelling personal reasons. When you quit, the burden will be on you to show that you should receive unemployment. CONTINUE READING ›

Back to School Basics: Teachers, Employees, and Title IX

Published on: September 7, 2022 | by Naomi Shatz

What Teachers and Other School Employees Need to Know About Title IX

While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “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.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.

Title IX Protects Employees from Discrimination and Harassment

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously. CONTINUE READING ›