Employers have a new resource document to use when determining when and how to grant employees leave as a reasonable accommodation under the Americans with Disabilities Act.  The document, published by the EEOC, is entitled Employer-Provided Leave and the Americans with Disabilities Act.

The ADAstock-photo-disability-medical-message-background-health-care-poster-design-121187878 applies to employers with 15 or more employees.  It requires employers to provide disabled employees with reasonable accommodations that allow them to perform the essential functions of their jobs unless doing so would cause an undue hardship.  Reasonable accommodations may include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability.

In issuing this technical assistance, the EEOC noted the increase in disability charges.  2015 hit a new high for disability discrimination claims brought before the agency.  The EEOC intends this resource document as a way to educate employers about leave as an accommodation.  For each category addressed, the EEOC provides examples or scenarios to assist employers.

As noted in its release of this document, “[o]ne troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. These policies often serve as systemic barriers to the employment of workers with disabilities. They may cause many workers to be terminated who otherwise could have returned to work after obtaining needed leave without undue hardship to the employer. EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances.” 

Commissioner Victoria Lipnic added, “Leave issues often present some of the toughest situations for employers and employees to deal with in our workplaces. This document provides needed one-stop guidance on how the EEOC approaches many of the common issues we see.”

The key topics addressed include:

  • Equal Access to Leave Under an Employer’s Leave Policy.  Employers must provide employees with access to leave “on the same basis as other similarly-situated employees.”  Policies may require all employees to provide documentation to substantiate the need for leave — like a doctor’s note.
  • Granting Leave as a Reasonable Accommodation.  Employers must provide employees with leave as a reasonable accommodation.  This includes providing unpaid leave to an employee with a disability so long as doing so does not create an undue hardship for the employer.  An employer is not required to provide paid leave beyond its paid leave policy.  Employers may also not penalize an employee for taking leave as a reasonable accommodation.
  • Communication after an Employee Requests Leave.  This is also referred to as the “interactive process.”  Employers must engage in the interactive process after a disabled employee requests leave, or additional leave, for a medical condition.  Employers must treat the request as a request for a reasonable accommodation.  As the EEOC explains, the interactive process is “a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”  At times, the employer may need more information so that it can understand the amount and type of leave, the need for leave, and whether there is a reasonable accommodation available other than leave.
  • Communication During Leave and Prior to Return to Work.  Employers should continue to engage in the interactive process if the disabled employee seeks additional leave due to a medical condition.  Employers may also ask for information from the employee as to the leave and the employee’s return to work.
  • Maximum Leave Policies.  Employers will be found in violation of the ADA if they enforce maximum leave policies.  While employers may have policies that set a maximum amount of leave the employer will allow, employers may need to grant exceptions to disabled employees and allow them additional leave beyond the maximum as a reasonable accommodation.
  • Return to Work and Reasonable Accommodation (Including Reassignment).  Employers will be found in violation of the ADA if they require employees to be 100% recovered or have no restrictions before they can return to work.  Employers should continue engaging in the interactive process if employees return to work with restrictions.  This allows discussion as to reasonable accommodations that will allow an employee to perform the essential functions of the job or consider reassignment to a vacant job position for which the employee is qualified.
  • Undue Hardship.   Employers may determine whether granting leave, or additional leave, is an undue hardship.  Factors that may be considered include impact on the employer’s operations and ability to serve customers, impact on co-workers and duties of job, whether intermittent leave is predictable or unpredictable, whether there is flexibility on when leave is taken, frequency of the leave, and amount and/or length of leave.

The EEOC’s resource document ends with citations to additional guidance on leave laws under the ADA, Family and Medical Leave Act (FMLA), and  worker’s compensation.

Companies should review their policies and procedures on leave so that they can make sure they are properly considering requests for leave by disabled employees.  Training on leave laws, leave requests, and the interactive process are also considered best practices.  Consultation with counsel is also advisable as properly considering leave or extended leave requests and documenting the interactive process may avoid liability.

In a 158-0 vote, the Massachusetts House of Representatives voted to approve the so-called Pay Equity Act. The Act makes it unlawful for any employer to discriminate “in any way on the basis of gender in the payment of wages,” or to pay someone of a different gender less for comparable work. The term “comparable work” is defined as work which requires substantially similar “skill, effort and responsibility,” and is performed under similar working conditions. These somewhat fuzzy concepts may present substantial liabilities to the unwary employer.

An employer who is non-compliant must pay the employee the unpaid wage differential, as well as an additional amount equal to the unpaid wages – in essence, double damages measured by the amount of unpaid wages for comparable work. The aggrieved employee can sue in Superior Court, and the court may award a prevailing employee his costs and attorneys’ fees. The Act also expressly contemplates class actions. Any agreement to pay employees less than that to which they are entitled under the Act is not a defense to liability.

The Act does allow for wage variations if based upon the following factors:

  • a merit system
  • seniority
  • earnings measured by quantity/quality of production, sales or revenue
  • geographic location
  • education, training or experience if related to a particular job
  • travel if regular and necessary.

Of course, if the wage payment is challenged in court, the employer would have to prove that the pay differential was the result of one or more of these factors.

The Act also prohibits an employer generally from requiring a prospective employee to refrain from inquiring about or disclosing the employee’s own wages or that of another employee. The Act also allows for an affirmative defense to liability if the employer has completed a self-evaluation of its pay practices, and has made reasonable progress in eliminating wage differentials based upon gender.

Given the momentum on Beacon Hill for this Act, there is a very good chance it will become law. Employers will need to review their pay policies and any variations to ensure compliance.

Former Fox News Anchor and commentator Gretchen Carlson filed a sexual harassment suit against CEO Roger Ailes alleging that her contract was not renewed because she refused Ailes’ sexual advances.  Carlson also alleged that the harassment she endured was severe and “very pervasive”, that Ailes repeatedly “injected sexual and/or sexist comments” into conversations and made “sexual advances.” Finally, when she told him  last fall to stop, a preventative measure women are often urged to take, Ailes is alleged to have responded, “ I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better.”

Carlson’s lawsuit contains the following additional allegations:

  • She tried to complain unsuccessfully about how male colleagues, including Fox & Friends co-host Steve Doocy treated her.
  • Doocy “engaged in a practice of severe and pervasive sexual harassment of Carlson, including, but not limited to, mocking her between commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful journalist rather than a blond female prop.”
  • Following her complaint about Doocy, she was removed from the popular morning show Fox & Friends and relegated to a less desirable 2:00 p.m. time slot.
  • Ailes referred to her as a “man hater” and told her to “get along with the boys.”

This is not a story from the 1970’s; this is a story from this week. It also comes on the heels of a June 2016 report issued by an EEOC task force which concluded that workplace sexual harassment training initiatives are often ineffective in stopping misconduct.  “Much of the training done over the last 30 years has not worked as a prevention tool,” the EEOC commissioners wrote, adding that “ineffective training can be unhelpful or even counterproductive”. The clear message of the report is that the most common trainings are designed to minimize legal risk to companies rather than change behavior in supervisors or employees.  “Sexual harassment training protects organizations, not employees” according to Berkeley Law Professor Lauren Edelman.

Carlson is not a young innocent ingénue; she is a 50 year old professional woman, a graduate of Stanford University and someone who has reached a coveted spot in her chosen field by hosting a program on a national news network.  Even though she is constantly referred to in the media as a former Miss America, she has done quite a few things with her life since.

What do Carlson’s suit and the EEOC’s report tell us about today’s workplace for women?   Maybe that we haven’t come as far as we thought we had.  Assuming Carlson’s allegations to be true, and it should be noted that they are currently being vigorously disputed, it signals the need for careful reexamination of workplace culture, expectations and action. Those of us who devote a large percentage of our professional work lives to risk management and training, need to take the initiative to develop programs which will help to shift workplace culture and truly influence the way people treat each other.  Perhaps even more important, employers must not only invest in training, they must “walk the walk.”  Employees need to feel that they can trust management to act when they report that bad things happen to them, rather than to stand in fear of retaliation.  Supervisors who protect employees who breach policy need to held accountable for what they are doing (or not doing).

What does Gretchen Carlson say about her lawsuit?

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”  You’ve come a long way baby, but you still have a long way to go.

The United States Equal Employment Opportunity Commission (“EEOC”) announced on June 2, 2016 its intention to issue a revised comprehensive enforcement guidance addressing national origin discrimination under Title VII.  The proposed guidance will be open for public comment for thirty days only beginning July 1, 2016.

The EEOC has issued a number of guidance documents in the past several years addressing such matters as pregnancy discrimination, the wearing of religious garb at work and privacy issues associated with employer wellness programs.  National origin discrimination includes discrimination on the basis of an individual’s or his or her ancestors’ place of origin.  The issue of national origin discrimination was last addressed by the EEOC in a guidance fourteen years ago.  In determining that the time was right for new guidance the EEOC commented on the fact that the US workforce “is ethnically diverse, reflecting both immigration and the ongoing assimilation of first- and second-generation Americans.”  In addition, in the last decade the immigrant population in 13 states with historically smaller  established immigrant communities grew to more than twice the national average.

Although agency guidance is not law, it is the enforcing agency’s interpretation of how applicable laws and regulations should be applied.  Thus, a guidance will have substantial persuasive effect and will give the employer a roadmap for avoiding possible claims of discrimination.  In fiscal year 2015, 11 percent of private sector charges filed with the EEOC contained a national origin component.

The revised guidance addresses job segregation, human trafficking and intersectional discrimination (discrimination due to a combination of two or more protected bases such as national origin and religion).  The EEOC itself identified protecting “immigrant, migrant, and other vulnerable populations” as part of its most recent strategic enforcement plan.

Input may be provided by mail to the EEOC at Public Input, EEOC, Executive officer, 131 M Street, N.E., Washington D.C. 20507 or via email by using www.regulations.gov.

The United States Department of Labor (“DOL”) yesterday released its long awaited final rule which revises the salary test for the “white collar” exemptions to the Fair Labor Standards Act (“FLSA”).  The new rule will be effective December 1, 2016 and is expected to impact some 4.2 million salaried workers based simply on the revision of the salary threshold for exemption.  The rule is similar to the proposed rule on which the DOL received an unprecedented number of comments (270,000) from businesses, workers, organized labor and non-profit organizations, but is different in some respects.  The highlights are as follows;

  • The minimum salary level for the executive, professional and administrative exemptions is raised from $455 per week to $913 per week, the first increase since 2004.
  • The salary threshold for automatic exemption as a highly compensated employee (“HCE”) is increased from $100,000 per year to $134,004 per year.
  • The salary threshold will be increased automatically every three years beginning January 1, 2020. New salary levels will be posted by the DOL 150 days in advance of their effective date.
  • The final rule will allow up to 10% of the salary threshold for non-HCE employees to be met by non-discretionary bonuses, incentive pay or commissions provided the payments are made at least quarterly.
  • No changes are made to the duties test which determines whether white collar salaried workers earning more than the salary threshold are ineligible for overtime pay based on the jobs they perform.

The DOL states that the revised regulation will “put more money into the pockets of many middle class workers – or give them more free time.”   Businesses have been aware of this impending change since President Obama directed the Secretary of Labor in March of 2014 to update the regulations to reflect the current economy and workforce.  Now, however, is the time for those who have not yet done so to prepare for the change.  Preparations should include reviewing and updating job descriptions to reflect accurately the tasks performed by workers and  reviewing compensation levels to determine whether it is more beneficial or consistent with the law to revise salaries or reclassify employees as non-exempt.

As more information develops, we will continue to post periodic updates and advice on preparing for the changes.

6584474_1On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA).   The DTSA had passed with overwhelming bipartisan support in the Senate and House.  It became effective upon its enactment.

In an area that has long been the province of state law, the DTSA now allows a company to bring a federal claim with federal remedies and federal jurisdiction for the misappropriation of trade secrets.   Nothing in the act is intended to preempt any other provision of law.  It is intended to supplement state law.

This new federal civil remedy will allow for a more uniform federal law on protecting a business’s trade secrets.  Previously, companies had to rely upon various state laws for protection or the contractual remedies set forth in their employment, confidentiality/nondisclosure, or noncompetition agreements.  With this uniformity also comes the ability for companies to file actions in federal court.

Remedies.  The DTSA sets forth federal remedies for the misappropriation of trade secrets, which include the following.

  1. Ex parte seizures of the property at issue in “extraordinary circumstances” to “prevent the propagation or dissemination of the trade secret.”  In any order for seizure issued, the court must set forth specific findings of fact and conclusions of law to justify the seizure.  Any order for seizure must also describe the property with reasonable particularity and provide for the narrowest seizure of property necessary to achieve the purpose of the act.  The court must also set a hearing no later than seven (7) days after an order issues.
  2. Monetary damages for actual loss and unjust enrichment caused by the misappropriation of the trade secret, or a reasonable royalty in exceptional circumstances that render an injunction inequitable.
  3. For willful and malicious misappropriation, a party may recover exemplary damages of up to two-times the amount of monetary damages and its attorney’s fees.
  4. If a claim is made in bad faith or a motion to terminate an injunction is made or opposed in bad faith, the prevailing party is entitled to its reasonable attorney’s fees.
  5. In an action brought for wrongful or excessive seizure of property, a party’s recovery of damages for such wrongful or excessive seizure will not be limited by the required security or bond posted with the court.

A federal court is prohibited from entering an order except where there is evidence of threatened misappropriation and not merely on the information the person knows.  Thus, the inevitable disclosure doctrine recognized by some states does not apply under this federal law.  The DTSA also prohibits entry of injunctions that “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.”

Whistleblower Protections.  The DTSA specifically provides a person immunity from civil and criminal liability under both federal and state trade secret law.  This immunity extends to whistleblowers who disclose trade secrets “in confidence” to a federal, state or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting or investigating a suspected of violation of the law.  Immunity also extends to persons who file a lawsuit where the filings are made under seal and the trade secret is not disclosed except pursuant to a court order.

Notice Requirements.  In addition to these whistleblower protections, the DTSA requires employers to provide notice of the immunity to an employee in any contract or agreement that governs the use of confidential or trade secret information.  Alternatively, an employer may fulfill this notice requirement by cross-referencing in the contract or agreement a policy document it provided to the employee that details the employer’s reporting policy.  This may include a provision in an employment handbook or some other policy document.

Of note, the DTSA broadly defines “employee” to include “any individual performing work as a contractor or consultant for an employer.”   This expands those persons who are covered by these whistleblower protections.  The notice requirement is prospective as it applies to “contracts and agreements that are entered into or updated after the date of enactment.”

In an effort to obtain compliance with this notice provision, the DTSA provides that if an employer fails to give the required notice to an employee, the employer may not be awarded exemplary monetary damages or attorney’s fees in an action brought against that employee.  The DTSA, however, provides no guidance on the required disclosure or cross-referenced policy language.

Statute of Limitations.  A private civil action under the DTSA must be brought within “three years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered.”

What should businesses do in the wake of this new federal law?  Companies should review their agreements that provide for confidentiality or similar trade secret provisions and amend them accordingly moving forward.  These may include employment agreements, noncompetition agreements, and business agreements with independent contractors or consultants.  To fully enjoy the federal remedies allowed, an immunity notice should be included in all new and updated employee agreements as well as contractor and consultant agreements with independent contractors.  Employers should also review their handbooks and policies relating to protection of confidential or trade secret information so that they may also rely on a policy document for compliance.

Photo: jaliyaj via Flickr (CC by 2.0)
Photo: jaliyaj via Flickr (CC by 2.0)

Last month, national retail chain Target announced that it would allow transgender employees and customers to choose the restroom and fitting room facilities that correspond to their gender identity.  Target took this step in response to laws, and proposed laws, in places like North Carolina and elsewhere, which seek to limit access to public restrooms based on the gender assigned to a person at birth.  These laws, and Target’s actions, have sparked an animated debate with people expressing strong feelings on both sides of the issue.  All of this has left many employers wondering what their responsibilities are with regard to bathroom access for their employees.

This week, the EEOC issued a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, which sheds some light on the matter.  The EEOC reminds employers that Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, which encompasses gender identity.  The EEOC referenced two recent agency decisions and an opinion from the Fourth Circuit Court of Appeals, all relating to discrimination based on transgender status, and involving access to restrooms and locker rooms.  The EEOC points out that contrary state law or local ordinance will not provide any defense to an employer facing charges of discrimination under Title VII.  In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of the so called “Bathroom Bills,” the EEOC emphasizes that Title VII only addresses workplace conduct, not personal beliefs.  As the EEOC explains, “these protections do not require any employee to change beliefs.  Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”

OSHA has also offered its guidance to employers on the issue of providing bathroom access to transgender employees.  OSHA’s Sanitation Standard requires employers to provide employees with prompt access to appropriate sanitary facilities.  It is OSHA’s position that this requires employers to permit employees to use the facilities that correspond with their gender identity.  OSHA suggests that employers provide employees with various options that employees may, but are not required to, choose to use, such as gender-neutral single-occupant restrooms or multiple-occupant restroom facilities with lockable single-occupant stalls.  However, OSHA emphasizes that, regardless of the workplace’s layout, “all employers need to find solutions that are safe and convenient and respect transgender employees.”

So, while the cable news talking heads and social media commenters continue to have their say about the bathroom wars, the EEOC and OSHA have made their position on the issue clear.

Photo: Jason Lawrence via Flickr (CC by 2.0)
Photo: Jason Lawrence via Flickr (CC by 2.0)

UBER has settled two class-action lawsuits — one filed in California in 2013 (O’Connor) and one in Massachusetts in 2014 (Yucesoy) — by drivers who sought to be considered employees rather than independent contractors.  In those cases, plaintiffs were seeking additional compensation, including reimbursement for expenses and tips.  The two cases had about 385,000 drivers as class members.

In the settlement reached in April 2016, UBER agreed to pay $84 million to the class of plaintiff-drivers.  UBER will pay an additional $16 million if it goes public and if its valuation increases by one and a half times its 2015 valuation within the first year of an IPO.

Additionally, under the terms of the settlement, drivers will remain independent contractors and not employees.  UBER will provide drivers with more information about their individual ratings and how each driver compares with his or her peers.  It agreed to introduce a policy explaining the circumstances under which UBER deactivates drivers from using its app.  The company’s official driver deactivation policy has been posted.  UBER also agreed to create an association in each state to allow drivers a venue for discussing drivers’ issues.  Furthermore, UBER drivers will be allowed to post signs in their cars that tell passengers that while not required, tips are welcome.

While a judge needs to approve the settlement, UBER’s Co-Founder and CEO Travis Kalanick issued a press release highlighting the settlement terms.  He views the resolution a win for the company.  He expressed that many drivers prefer to be their “own boss” and would remain independent contractors under these settlement terms.  As Mr. Kalanick explains, “Uber is a new way of working: it’s about people having the freedom to start and stop work when they want, at the push of a button.  As we’ve grown we’ve gotten a lot right—but certainly not everything. “

Lessons to be learned from UBER?  Companies should review how they classify workers.  Companies should also review and update any third party services agreements they are currently working under.  Misclassification creates risks for companies that may lead to costly class action lawsuits.

Computer keyWith the number of emails, texts, and other electronic data in the workplace today, not knowing your company’s litigation preservation duties or not having proper procedures in place to meet those responsibilities may later lead to court sanctions such as fines or the loss of a lawsuit. The law prohibits the destruction of potentially relevant evidence.  Today, a company must know (1) when it has an obligation to preserve information and (2) what information it must preserve.

This responsibility usually falls on the shoulders of the business managers and human resources people who address the issue before outside counsel become involved.  Managers and HR professionals must understand the instances that may give rise to the duty in the employment context, and they must be able to assess what evidence to preserve and what steps to take to ensure preservation.

The duty to preserve documents and electronic information arises when an employer has notice that the information is relevant to litigation or when an employer should have known that the information may be relevant to future litigation.  In other words, documents and electronic data must be preserved when litigation is “reasonably anticipated.”  The usual circumstances kick-starting this duty might be a lawyer’s letter, notice of a complaint filed with the EEOC or a state agency, or notice of a lawsuit.  Depending on the circumstances, the duty to preserve may arise even before this.

What information must be preserved depends on two variables:  (1) who is involved; and (2) what documents such people have.  When a reasonable anticipation of litigation arises, a company should ascertain the key players or which employees are likely to have relevant information.  A company should then determine what documents each person may have.  That inquiry inherently requires an investigation of the types of information that each key player may have and the locations where that information may be stored, including documents in various electronic forms and mediums (desktop, laptop, server, thumb drive, audio, camera, cell-phone, etc.).

As a company learns more about a potential dispute, it should reassess whether it has preserved all of the evidence that it must preserve.  That involves reassessing whether there are additional key players, whether there are new issues that require the preservation of a broader type of evidence, or whether evidence spans a broader time period than initially preserved.

The obligation to secure evidence can require a company to take a number of different actions.  Some of the common steps include:

(1)        Determine the scope of the litigation hold (including subject matter and issues, key players, location of data, and relevant time periods) and promptly stop automatic destruction processes until the proper scope can be determined.

(2)        Issue litigation hold notices to key players and other corporate employees, such as IT people, informing them that there is a hold on the destruction of any documents subject to the preservation obligation. Key players should be reminded that preservation includes all information within the scope identified no matter where the data is located.

(3)        Interview key players, and determine any required expansion of the scope of the hold and segregate them to prevent any destruction.

(4)        Work with IT people to ensure that routine data destruction measures are appropriately stopped according to the hold.

(5)        Make electronic forensic images of the hard drives and other electronic devices of certain key players.

A company must take prompt steps to preserve potentially relevant evidence when a reasonable anticipation of litigation arises.  It should have procedures in place for determining the key players, the relevant time period, and where any documents and data may be stored.   A company may consider consulting with counsel on the duty and scope of a litigation hold so that it does not face problems later.

 

The Massachusetts Attorney General’s Office, along with several other states, is challenging retail stores’ use of “on call” shifts.  This month, Massachusetts joined with California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, New York and Rhode Island to send requests for information regarding the use of “on call” shifts to 15 national retailers that have locations in Massachusetts (click here for the AG’s Press Release).  These retailers include major household names, such as American Eagle Outfitters, Coach, Carter’s, Disney Stores, Forever 21, and Payless, to name a few.

According to Attorney General Maura Healey, employees assigned to on-call shifts are typically required to contact their employer an hour or two before a scheduled shift to learn whether they must work the shift.  If the worker learns that his or her services are not required, the worker does not get paid, even though the employee was required to be available to work, to forgo other job and educational opportunities, and to make arrangements for child care or other person responsibilities.  According to the letter sent to retailers, “[s]uch unpredictable work schedules take a toll on employees.”  The letter cites concerns that workers who must be “on call” have difficulty making reliable childcare and eldercare arrangements, encounter obstacles in pursuing an education, and in general experience higher incidences of adverse health effects, overall stress, and strain on family life than workers with a stable schedule set reasonably in advance.

In 2015, after a similar inquiry by the New York Attorney General, several major retailers including Abercrombie & Fitch, Gap, J.Crew, Bath & Body Works, and Victoria’s Secret agreed to end the practice.

According to the Attorney General’s Office, retail salesperson is the most common occupation in the United States, and Massachusetts has over 100,000 retail sales jobs.  Entry level retail workers earn, on average, $1,460/month or $17,520/year.  And although men and women are nearly evenly represented in retail jobs, women are concentrated in low-wage retail jobs.

For employers, the issue is not just one of ensuring employees’ well-being.  Many states have reporting pay or call-in pay laws of their own that employers must follow.  For example, New York’s “call in pay” regulation provides that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” 12 NYCRR 142-2.3.

Currently, Massachusetts does not have laws prohibiting the use of these types of “on call” shifts.  The Massachusetts regulation, 454 CMR 27.04(2) provides that “[a]ll on-call time is compensable working time unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes” (emphasis added).  An interesting issue is whether the employee who is waiting to hear whether he or she must report to work is effectively free to use his or her time for his or her own purposes.

Last year, a bill was introduced in the House that would require all employers to provide 21 days advance notice to employees of their schedule, and when an employer changes or cancels a shift, the employer would be required to pay one to four hours of “predictability pay,” in addition to the wages paid for hours worked.  The Senate bill, which would apply only to fast food and retail establishments with at least 75 employees, would likewise require 14 days advance notice to employees of their schedule, and if a shift is changed or canceled, the employer would be responsible for one to four hours of additional pay.

While not current law, Massachusetts employers should consider the implications and realities should these bills, or similar bills in the future, become law, especially in light of the Massachusetts Attorney General’s Office recent inquiry and critique of “on call” shifts.