Photo: Governor Charlie Baker (Public Domain)

Last week, Governor Baker signed the Pregnant Workers Fairness Act into law, which guarantees greater protections for pregnant women and nursing mothers in the workplace.  The bill had unanimously passed in both the House and Senate.  The law prohibits employers from discriminating against an employee because of pregnancy or the need to express breast milk for a nursing child and from denying these employees a reasonable accommodation when it would not cause the employer undue hardship.

Please click here for a more detailed discussion of the law.

The law will take effect on April 1, 2018.  Employers should start reviewing their current policies now in order to make the necessary revisions to comply with the law.

Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation.  That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Continue Reading Department of Justice Contradicts EEOC in Sexual Orientation Discrimination Case

A few weeks ago, the Department of Labor filed a brief with the Fifth Circuit Court of Appeals in which it backed away from the $913 per week salary level test set in the 2016 amendments to the FLSA overtime rules.  In that brief, the DOL stated that it would soon publish a request for information seeking public input to be used by the DOL in drafting a new proposed overtime rule.

Continue Reading DOL Issues Request for Information on Changes to Overtime Rules

In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court’s dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana.  The SJC held that the woman’s claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.

Continue Reading Massachusetts High Court Reinstates Suit by Employee Fired for Off-Duty Medical Marijuana Use

On July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released an updated version of the Form I-9, Employment Eligibility Verification. This updated version will replace the most recent form from late January of this year. Employers will have the option to use the updated form (Rev. 07/17/17 N) or continue using the previous Form I-9 (Rev. 11/14/2016 N) during a 60 day grace period, until September 17, 2017. Beginning September 18, 2017, employers will be required to use the updated form for the initial employment verification of all new hires, as well as any applicable employment re-verifications.

Continue Reading USCIS Releases Updated I-9

On July 5, 2017 Washington became the latest state to enact some form of paid family and medical leave. The new law goes into effect in January 2020 and will provide employees with up to twelve (12) weeks per year of paid family leave for the following purposes:

• The employee’s own serious health condition;
• Care of a family member with a serious health condition;
• Care of a child new to the family following birth, adoption or placement in foster care; or
• For qualifying exigencies due to a family member’s deployment to active duty in the US Armed Forces. Continue Reading Washington State is Latest to Enact Paid Family Leave Legislation

Last November, a Federal District Court Judge in Texas issued a nationwide injunction preventing changes to the overtime rules under the Fair Labor Standards Act (“FLSA”) from going into effect. Among other things, the new rules would have modified the so-called “salary level test,” such that an employee would need to make at least $913 per week in order to fall under the executive, administrative, and professional exemption (the “EAP exemption”). In the months that have passed since the injunction went into effect, there has been great uncertainty about the future of the new overtime rules. However, a brief filed by the Department of Labor on June 30 in its appeal to the U.S. Court of Appeals for the Fifth Circuit sheds some light on the Trump Administration’s plans for the overtime rules. Continue Reading DOL Defends Its Authority to Establish a Salary Level Test under the FLSA, but Backs Away From the Amount Set in 2016 Rule

Photo: OTA Photos via Flickr (CC by SA 2.0)
Photo: OTA Photos via Flickr (CC by SA 2.0)

One of the key provisions of the new Massachusetts Equal Pay Act (which goes into effect on July 1, 2018) is that it prohibits employers from requiring prospective employees to disclose their salary history.  The reasoning behind this provision is as follows:  if employers are allowed to ask applicants about their salary history, and base compensation on the answers to those questions, applicants who have been on the receiving end of discriminatory pay practices in the past will continue to be hampered by past pay inequity throughout their careers.  If employers cannot base pay on what an applicant made previously, so the thinking goes, employers will have to set pay based on what the job is worth.

Continue Reading New Survey Shows How Questions About Prior Salary Harm Female Job Applicants

On June 27, 2017, U.S. Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor (USDOL) will reinstate the issuance of opinion letters.  You might be wondering why this decision is important to businesses.  The answer is two-fold: (1) opinion letters provide interpretation of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) so that employers understand their rights and responsibilities under the law; and (2) opinion letters may be relied upon as a good faith defense to wage claims arising under the FLSA.

Continue Reading US DOL Reinstates Opinion Letters

Photo: President Donald J. Trump (WhiteHouse.gov)
Photo: President Donald J. Trump (WhiteHouse.gov)

At the conclusion of the Obama presidency there remained two open seats on the National Labor Relations Board (“NLRB”).  The five member panel operated with two Democrats and one Republican for a significant period of time given the refusal of the Republican Senate to move on confirmation of President Obama’s nominees.  Normally, the Board contains three members of the sitting President’s party.  Even with only three members, two Democrats, the Board issued many decisions impacting labor/management relations including sweeping pronouncements regarding employee use of social media and employee handbook policies.  The NLRB is charged with enforcing the National Labor Relations Act (“NLRA”), which guarantees the right of most private sector employees to organize and to engage in “concerted activity” which includes discussing the terms and conditions of their employment with one another and the public.  Many decisions coming out of the Board over the past eight years are viewed as having increased regulation on private sector employers and limiting the ability of private employers to manage their workforces as they see fit.

President Trump took a step toward filling the board by nominating Republican Marvin Kaplan to one of the seats.  Kaplan, a former labor and employment attorney, currently serves as counsel at the Occupational Safety and Health Review Commission.  He has significant experience with the issues expected to come before the board.  Senate representatives indicate that they plan to take up his nomination quickly.  President Trump is also likely to nominate someone to the fifth seat quickly in order to establish a Republican majority on the Board.  Employers should expect to see a rollback of some of the Obama era policies in the near future.