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

Photo: TipsTimesAdmin via Flickr (CC by 2.0) - tipstimes.com
Photo: TipsTimesAdmin via Flickr (CC by 2.0) – tipstimes.com

Earlier this week, Massachusetts House of Representatives voted unanimously to pass An Act Establishing the Massachusetts Pregnant Workers Fairness Act, a law that would guarantee greater protections for pregnant women and nursing mothers.  The legislation prohibits employers from discriminating against an employee because of “pregnancy or a condition related to pregnancy,” which is defined to include the need to express breast milk for a nursing child.  It also prohibits employers from denying pregnant women and nursing mothers reasonable accommodations if requested by the employee unless it would impose an undue hardship upon the employer.  The bill provides the following examples of such reasonable accommodations: Continue Reading Massachusetts House Passes Legislation to Protect Pregnant and Nursing Mothers in the Workplace

Photo: Chuck Coker via Flickr (CC by ND 2.0)
Photo: Chuck Coker via Flickr (CC by ND 2.0)

Last Thursday, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in a case that asks whether employers can be required to make accommodations for employees’ off-duty use of medical marijuana.

The case was brought by a woman who suffers from Chron’s disease and who treats the condition with marijuana, as authorized by state law.  (Massachusetts voters passed an initiative in 2012 decriminalizing the possession and use of marijuana for medical purposes.  In 2016, Massachusetts voters passed a measure decriminalizing marijuana for recreational use.  Marijuana is illegal for all purposes under federal law.)  After the plaintiff accepted an entry-level job at a marketing company, she was told that she would need to take a drug test.  Continue Reading Massachusetts Supreme Judicial Court Considers Employees’ Use of Medical Marijuana

Photo: Rusty Clark via Flickr (CC by 2.0)
Photo: Rusty Clark via Flickr (CC by 2.0)

Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity.  The Court’s  change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access.  Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace.  The answer to that question will have to wait. Continue Reading The Problem with Pronouns

Photo: William Brawley via Flickr (CC by 2.0)
Photo: William Brawley via Flickr (CC by 2.0)

Last week, a three-judge panel of the U.S. Court of Appeals for the First Circuit upheld the dismissal of a suit filed by construction-industry employers and their trade associations seeking to block enforcement of the Massachusetts Earned Sick Time Law in settings where collective bargaining agreements are in place.

The employers claimed that Section 301 of the Federal Labor-Management Relations Act, 29 U.S.C. § 185(a), preempts any claim that might be brought by an employee or the Massachusetts Attorney General under the Massachusetts Earned Sick Time Law.  The employers argued that, since the Labor-Management Relations Act preempts state-law suits alleging violations of CBAs, it would bar claims brought under the Massachusetts Earned Sick Time Law in union settings because the determination of any such suit would require analysis and interpretation of the applicable CBA.

The trial court dismissed the employers’ suit, finding that it was not ripe because no earned sick time claim had yet been filed by any union employee or by the Massachusetts Attorney General on behalf of unionized workers.  Therefore, the trial court found that the employers’ claims were “at best hypothetical.”  On appeal, the First Circuit upheld the dismissal, agreeing that the employers’ request was not yet ripe because it was “too contingent,” and based on “as-yet-unknown features of as-yet-unspecified claims.”

While the First Circuit’s decision leaves open the question of whether the Labor-Management Relations Act preempts the Massachusetts Earned Sick Time Law, the opinion does provide some insight into how the issue might be resolved when it arises again.  The First Circuit noted that the Labor-Management Relations Act does not necessarily preempt state laws that establish rights and obligations independent of a labor contract.  Moreover, the fact that a court might need to refer to a CBA to determine an employee’s damages in a state-law claim (such as to calculate the employee’s hourly rate of pay), does not mean that the claim arises under the CBA and should therefore be preempted.

Employers with unionized workforces will want to keep a close eye on this issue as it continues to develop.

The case is Labor Relations Division of Construction Industries of Massachusetts, Inc., et al. v. Healey, No. 15-1906 (Dec. 16, 2016).

Donald TrumpWhile inauguration day is still several weeks away, employers are already wondering what is in store for them when Donald Trump takes office as the forty-fifth president. Throughout his campaign, Mr. Trump has set forth a number of promises and proposals that could have significant effects on American employers. It remains to be seen whether any of these proposals will become a reality, but the following are some of the top issues that employers will be watching.

Minimum Wage: On the campaign trial, Mr. Trump has said that he favors increasing the federal minimum wage to $10 per hour (up from the current $7.25), although such a move is not supported by Republicans in Congress. Even if the federal minimum wage increased to $10, it wouldn’t affect Massachusetts employers since the state minimum wage is already $10, and is set to increase to $11 per hour on January 1, 2017.

Overtime: The Department of Labor’s new overtime rule—which raises the FLSA’s minimum salary level for exempt employees to $47,476 per year—goes into effect on December 1, 2016, well before Mr. Trump takes office. However, Mr. Trump has said that he would like to see a “carve out” exempting small businesses from the new overtime rules. Also, lobbyists from the retail industry have indicated that they will try to persuade the Trump administration to eliminate the rule’s automatic triennial salary level adjustment.

Paid Leave for New Mothers: In an initiative spearheaded by his daughter, Ivanka—a working mother herself—Mr. Trump has promised to provide six weeks of paid maternity leave for new mothers. While the specifics have yet to be worked out, the plan calls for providing new mothers with temporary benefits through the unemployment insurance system rather than direct payments from employers. The plan does not appear to make any provision for new fathers, and it is unclear as to whether the proposed benefits will be available in cases of adoption and surrogacy.

Child Care: Mr. Trump has also promised to help workers deal with the high cost of child care. He has proposed an “above-the-line” deduction for child care costs on parents’ tax returns. He has also proposed the creation of tax-exempt dependent care savings accounts, into which parents could deposit up to $2,000 per year. Mr. Trump’s savings account proposal also calls for the government to provide a 50% match on the first $1,000 of contributions for qualifying low-income parents. Finally, Mr. Trump is calling for adding greater incentives, in the form of tax credits, for employers to offer on-site child care.

Healthcare: A centerpiece of Mr. Trump’s campaign has been his pledge to repeal and replace Obamacare. It is not clear, however, what Mr. Trump and the Republican-controlled Congress will replace it with. Some of the more popular aspects of the Affordable Care Act—such as protections for people with pre-existing conditions, and extended coverage for young adults under their parents’ plans—are likely to be retained, according to many pundits. Other changes will be hotly debated, and closely watched by employers, in the coming months.

Photo: Barry Richmond via Flickr (CC by SA 2.0)
Photo: Barry Richmond via Flickr (CC by SA 2.0)

Yesterday, with the approval of Question 4 by a 53.6% to 46.4% vote, Massachusetts joined a growing number of states that have legalized marijuana for recreational purposes. What does this change in the law mean for Massachusetts employers?

The new law, which goes into effect on December 15, 2016, allows Massachusetts residents over the age of 21 to possess up to one ounce of marijuana outside their home and up to ten ounces at home, and to grow a limited number of marijuana plants at home. The law also allows Massachusetts adults to give (but not sell) up to one ounce of marijuana to another adult. The law provides for the establishment of a Cannabis Control Commission to be responsible for regulating and licensing the commercial sale of marijuana, something that won’t begin until at least January 2018. It will still be illegal in Massachusetts to consume marijuana in public, to smoke it anywhere that smoking tobacco is prohibited, or to operate a motor vehicle under the influence of marijuana. The possession and sale of marijuana remains illegal under federal law.

For Massachusetts employers, however, this new statute doesn’t represent a significant change in the law. The text of the statute provides that employers are not required to permit or accommodate any of the conduct allowed by the statute in the workplace, and the law specifically provides that it does not affect employers’ authority to enact and enforce workplace policies restricting the consumption of marijuana by employees.

The use of marijuana for medical purposes is already legal in Massachusetts following a 2012 voter initiative. Many employers took that change in the law as an opportunity to establish or update policies and procedures relating to drugs in the workplace. For employers that don’t already have comprehensive drug and alcohol polices in place, now is a good time to address those issues with employment counsel to ensure that they comply with the law and achieve the employers’ objectives for a drug-free workplace.

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

Upon a motion for preliminary approval of the class-action settlement for $100 million, a federal court found that the settlement between Uber and drivers in two states was “not fair, adequate and reasonable” and denied approval.  It ordered the parties to confer about how they wanted to proceed.  A joint status report is due on September 8th and a status conference is scheduled with the court for September 15th.

The litigation involves current and former Uber Technologies Inc. drivers in Massachusetts and California who brought claims alleging that they were improperly classified as independent contractors rather than as employees.  The actions cover about 385,000 drivers.  After three years of contentious litigation, and on the eve of trial earlier this year, the parties reached a settlement of these two class-action lawsuits.  Among other terms, Uber agreed to pay $84 million plus an additional $16 million depending if the company went public.  Drivers would remain classified as independent contractors and Uber agreed to institute certain processes and procedures internally.  See my previous post about some of the settlement terms.

In his review of the proposed settlement, Judge Edward Chen of the U.S. District Court for the Northern District of California cited case law noting that “whether a settlement is fundamentally fair…is different from the question whether the settlement is perfect in the estimation of the reviewing court.”  But “when…the settlement takes place before formal class certification, settlement approval requires a ‘higher standard of fairness.'”  As the judge explained, in this case, “because the Settlement Agreement covers the claims of both certified class members and drivers who fall outside the class definition and thus have not been certified (for example, all Massachusetts drivers and the California drivers who drove for a third-party transportation company or under a corporate name), this Court must apply the more ‘exacting’ standard in determining whether this settlement is fair, adequate, and reasonable.”

Of primary concern to the court was that the $1 million allocated to California’s “Private Attorneys General Act” (PAGA) claim was modest.  PAGA is a law that allows private citizens to seek civil penalties for labor violations.  The judge noted that the settled PAGA portion was .1% of the potential $1 billion-plus statutory penalty against Uber claimed in the lawsuit.  “Here, the court cannot find that the PAGA settlement is fair and adequate in view of the purposes and policies of the statute.”  Essentially, the federal court found that the amount of the settlement allocation to the state was not large enough.

The court also ruled that the arbitration provision on appeal deserved further consideration. The appeal pending at the 9th Circuit Court of Appeals on an earlier decision by Judge Chen involves a determination as to whether certain arbitration agreements signed by drivers are enforceable.  Judge Chen recognized that if he were reversed on appeal, it would have a significant impact on the case as many of the drivers would need to proceed through arbitration.

Both sides have reported their disappointment in the ruling.  This ruling by the federal court, however, does not prevent the parties from reaching a new settlement which addresses the judge’s concerns, particularly as to the PAGA.

This case is being watched closely by those companies using on demand workers.  It is also a good reminder about the potential class-action liability employers face for the misclassification of a group of employees.   All employers should be reviewing their independent contractor classifications to make sure those persons are not really employees under an incorrect label.

Open to the PublicEffective October 1, 2016, “places of public accommodation” in Massachusetts are prohibited from discriminating against persons based on their gender identity.  Under this new anti-discrimination law signed by Governor Charlie Baker this summer, places of public accommodation must allow individuals to use or access gender-segregated areas such as bathrooms and locker rooms consistent with their gender identity.

A place of public accommodation is “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public,” including:

  • Hotels, inns, motels, campgrounds, resorts;
  • Restaurants, bars, and other establishments serving food or drink;
  • Theaters, concert halls, sports stadiums, and other places of entertainment;
  • Auditoriums, convention centers, lecture halls, houses of worship, and other places of public gathering;
  • Sales and rental establishments, including stores, shopping centers, automobile rental agencies, and other retail establishments;
  • Service establishments, including laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations, funeral parlors, employment agencies, and providers of professional services such as lawyers, doctors, dentists, accountants, and insurance agents;
  • Health care facilities, including dental and medical offices, pharmacies, clinics, hospitals, nursing homes, and other health facilities;
  • Transportation vehicles of all types and transportation stations, terminals, depots, platforms and facilities appurtenant thereto;
  • Museums, libraries, galleries, and other places of public display or collection;
  • Parks, zoos, amusement parks, and other places of recreation;
  • Child care centers, senior citizens centers, homeless shelters, food banks, adoption agencies, and other social service establishments;
  • Gymnasiums, health spas, bowling alleys, swimming pools, beaches, golf courses, and other places of exercises or recreation.

The Massachusetts Commission Against Discrimination (MCAD) oversees enforcement of this law.  It is authorized “to adopt, promulgate, amend, and rescind rules and regulations or to formulate policies and make recommendations to effectuate” its purposes.

Gender identity has been a protected category in the Commonwealth in employment, education, and housing since legislation in 2011.  Employers with six or more employees are prohibited from discriminating against transgender individuals in the workplace.   Following the adoption of that law, MCAD issued a fact sheet that advised employers that denying employees permission “to use the bathroom of one’s identifying gender could be viewed as discriminatory.”

The EEOC has also issued a fact sheet entitled “Bathroom Access Right for Transgender Employees Under Title VII of the Civil rights Act of 1964.”  Under that publication, the EEOC takes the position that discrimination based on transgender status is sex discrimination in violation of Title VII.  Thus, the EEOC would find the denial of equal access to a common restroom of the employee’s gender identity or requiring an employee to undergo or provide proof of surgery or other medical procedure as sex discrimination.  That publication also cites to OSHA’s A Guide to Restroom Access for Transgender Workers.  OSHA advises that the best restroom policies include options, which employees may choose from, and include:

  1. Single-occupancy gender-neutral (unisex) facilities; and
  2. Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

OSHA has noted that, “Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.”

Some businesses have expressed safety concerns about people accessing segregated facilities like bathrooms or locker rooms for improper reasons.  In the education setting, my colleague Linda Johnson has written about the U.S. Supreme Court’s decision on August 3, 2016 to put on hold a lower federal court ruling that a transgender male student be allowed to use the bathroom of his gender identity until the Supreme Court rules on the School Board’s petition for appeal.  My colleague Adam Hamel has also written about laws, and proposed laws, which seek to limit access to public restrooms based on the gender assigned to a person at birth and what those “bathroom bills” mean for employers.

Massachusetts employers who open their doors to the public should train their employees on this new law.  Employees need to understand these gender identify protections for members of the public accessing their facilities.  Companies should also review their non-discrimination policies to ensure that they are up-to-date.

In a historic moment, yesterday, Governor Charlie Baker signed into law a comprehensive pay-equity bill aimed at eradicating the wage gap in Massachusetts. With the bill’s passage, Massachusetts has become the first state in the nation to prohibit employers from asking job applicants to provide a salary history during the interview process.

Supporters of the law argued that the practice of requesting a salary history has been shown to disadvantage women, who, on average, are paid less than men. The bill aims to eliminate discrimination in the payment of wages on the basis of gender, promote salary transparency, and encourage employers to review salaries to identify pay disparities within their organizations.

The new law is discussed in more detail here. The legislation goes into effect on July 1, 2018.