Mass. Legislature Amends Personnel Records Statute

Unbeknownst to just about everyone, buried deep within the recently enacted “Act Relative to Economic Development Reorganization” is language that significantly amends the Massachusetts Personnel Records Statute (Chapter 149, Section 52C), placing new administrative burdens on Massachusetts employers. Under the amendment, which became effective August 1, 2010, employers are now obligated to “notify an employee within 10 days of the employer placing in the employee’s personnel record any information to the extent that the information is, has been used or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” Translated into English, this means that any time a document is created that could negatively impact an employee’s employment, and the employer retains the document, the employer must notify the employee of it within ten days of the document’s placement in the employee’s personnel record.

The term “personnel record” is defined very broadly. It includes any document kept by an employer that is or has been used or may be used to affect an employee’s employment, promotion, transfer, compensation, or discipline. This includes documents that may be maintained some place other than in the employee’s formal personnel file; for example, in files kept by an individual manager or supervisor. Consequently, this amendment could be interpreted as requiring employers to notify employees any time a manager drafts a quick note to herself about problems with an employee’s performance, or two supervisors exchange emails debating whether an employee should be promoted. Arguably, as long as the document is retained in some fashion – either in hard copy or electronically – the amendment requires that the employee in question be notified of it.

In a small nod to employers, the amendment limits the number of times an employee may ask to review his personnel record to twice during a calendar year. However, this limitation does not apply to record reviews that stem from the placement of a negative record in an employee’s file. The amendment does not change the employer’s obligation to produce the personnel record within five business days of the employee’s request. Failure to comply with the statute can result in a fine of between $500 and $2,500 for each violation. The Attorney General is responsible for enforcing the statute.

The personnel records amendment raises a number of significant questions for employers. What constitutes negative information? Does it really include a manager’s quick note about an employee written on a piece of scrap paper? And does tossing the note into her desk drawer mean that the manager has “placed” it in the employee’s personnel record? If so, what form does the employee notification take? Must a copy of the note be shown to the employee, or is it enough simply to notify him that the note was made? Unfortunately, the amendment does not come with an instruction manual, so only time will tell. Until these issues are settled by a judge, or the Attorney General issues some guidance, we recommend that employers proceed cautiously. All documents concerning an employee’s employment – positive and negative –should be kept in a centralized human resources file. Managers and supervisors should be cautioned that keeping their own “shadow” personnel records does not alleviate the obligation to notify employees of negative information that may be placed in those files. Procedures should be developed for notifying employees any time negative information is added to their personnel records. Such procedures should be clearly communicated to managers, supervisors, and anyone else who may handle employee information.

SJC Clarifies Leave Limit Under Mass. Maternity Leave Act

In an August 9, 2010 decision, the Massachusetts Supreme Judicial Court clarified that job-restoration rights under the Massachusetts Maternity Leave Act (“MMLA”) do not extend beyond eight weeks. In Global NAPS, Inc. v. Awiszus (No. SJC-10586), the Court, by a 4–3 margin, held that “[o]nce a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the MMLA, and, consequently, is not afforded the protections conferred by the statute.” The decision represents a victory for employers that are faced with an ever-increasing barrage of state and federal statutes and regulations designed to protect the rights of employees in the workplace.

The MMLA, which has been in existence since 1972, provides that a female employee – the statute does not cover male employees – who has completed her employer’s probationary period, or who has worked full time for the same employer for three consecutive months, is entitled to take up to eight weeks of leave for the birth or adoption of a child. As long as the employee gives her employer at least two-weeks’ notice of her anticipated date of departure and her intention to return to work, she must be restored to her previous or similar position with the same status, pay, length of service credit, and seniority. The maternity leave may be paid or unpaid at the employer’s discretion. Employers are free to provide maternity leave benefits greater than those required under the statute. An employee who believes her MMLA rights have been violated may file a charge with the Massachusetts Commission Against Discrimination (“MCAD”), the agency charged with enforcing the statute.

In late June 2000, Sandy Stephens informed her employer, Global NAPS, Inc., that she would begin her maternity leave on July 14. She was told that she could remain out of work until October 2. When Stephens telephoned Global on September 27 to confirm that she would be returning within the week, she was told her employment had been terminated. Stephens subsequently sued Global under the MMLA, alleging that Global failed to comply with the MCAD’s Maternity Leave Guidelines, which state in relevant part that “if the employer does not intend for full MMLA rights to apply to the period [of leave] beyond eight weeks, it must clearly so inform the employee in writing prior to the commencement of the leave.” After trial, the jury awarded Stephens more than $2 million in damages (this amount was later reduced to $1.3 million).

Following a series of complicated post-trial legal maneuvers, the case made its way to the SJC. A majority of the Court concluded that neither the MMLA, nor its regulations, require an employer to notify an employee taking more than eight weeks of leave whether MMLA rights will apply to the period of leave extending beyond eight weeks. The Court also concluded that to the extent the MCAD’s Maternity Leave Guidelines suggest that MMLA rights extend beyond the eight-week statutory limit, they are inconsistent with the statute and do not provide a basis for legal relief. The Court pointed out that an employee may have other rights that protect her from termination while on maternity leave, including breach of contract and detrimental reliance, but unless those claims are plead, the employee has no right to her job back after eight weeks under the MMLA.

An important caveat. The MMLA covers eligible female employees who work for a Massachusetts employer with at least six employees. Employees – both female and male – who work for employers with at least 50 employees within a 75-mile radius may be eligible for parental leave of up to twelve weeks under the federal Family and Medical Leave Act. Parental leave under the FMLA runs concurrently with MMLA leave, not in addition to it.

Parental Leave Rights Expanded Under FMLA

On June 22, 2010, the United Stated Department of Labor clarified the definition of “son and daughter” under the Family and Medical Leave Act, effectively extending parental leave rights to individuals who provide day-to-day care or financial support to a child, regardless of the legal or biological relationship between the individual and the child. Click here to view the clarification.

The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave during a 12-month period because of – among other things – the birth of an employee’s son or daughter, the placement with an employee of a son or daughter through adoption or foster care, and the need to care for a son or daughter with a serious health condition. The FMLA defines “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” The FMLA regulations define in loco parentis to include those individuals with day-to-day responsibilities to care for and financially support a child. Thus, an employee who has no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.

Determining whether an individual stands in loco parentis is dependent upon the particular facts of each case. Factors to be considered include the child’s age; the degree to which the child depends on the person claiming to stand in loco parentis; the amount of support, if any, the individual provides; and the extent to which duties commonly associated with parenthood are exercised. An individual does not have to prove that he or she provides both day-to-day care and financial support; one or the other will be sufficient. For example, according to the DOL’s clarification, where an employee provides day-to-day care for his unmarried partner’s child (with whom he has no biological or legal relationship), but does not support the child financially, the employee may be considered to stand in loco parentis to the child and be entitled to FMLA leave. Similarly, an employee who intends to share equally in the raising of a child with a same-sex partner, but who has no legal or biological relationship with the child, is now clearly entitled to FMLA leave for the birth or placement of the child or to care for the child if the child has a serious health condition.

The DOL’s clarification tracks Congress’ original intent that the definition of “son and daughter” reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother,” and that the FMLA should be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” S. Rep. No. 103-3, at 22.

The DOL’s clarification most obviously benefits lesbian, gay, bisexual, and transgender families. But its scope extends beyond same-sex parents. Where a heterosexual couple divorce and each parent subsequently remarries, the child will be considered the “son or daughter” of both the biological parents and the stepparents and all four adults would have the right to take FMLA leave to care for the child. Likewise, a grandparent may stand in loco parentis to a child where the child’s parents either die or are otherwise incapable of providing care. The FMLA requires only that, if requested by the employer, an employee seeking leave in an in loco parentis capacity provide a simple statement asserting that the requisite family relationship exists.

For employers, the practical impact of the DOL’s clarification is that by specifically referring to same-sex partners, the FMLA has been expanded to include “non-traditional” families even where the state in which the individuals and employer are located does not recognize such relationships. Consequently, an employer may not deny FMLA parental leave to an otherwise eligible lesbian, gay, bisexual, or transgender employee simply because the employee’s familial relationship is not legally recognized by the state in which he or she resides. Accordingly, employers may find themselves granting FMLA parental leave to a greater number of employees than ever before.

An important caveat:  The DOL’s clarification applies only to FMLA leave for the birth or adoption of a child or to care for a child with a serious health condition. It does not expand coverage to allow a same-sex partner to take FMLA leave to care for his or her partner with a serious health condition. Nor does it address an employee’s entitlement to take military FMLA leave for a son or daughter, which is governed by separate definitions in the statute.

Nursing Breaks Required Under FLSA

The Wage and Hour Division of the U.S. Department of Labor has issued a new Fact Sheet setting out requirements for employers to provide reasonable breaks during the work day to nursing mothers who need to express their breast milk.

The break time requirement for nursing mothers went into effect on March 23, 2010, with enactment of the Patient Protection and Affordable Care Act. That Act (part of the Obama Administration’s healthcare reform efforts) amended the overtime pay provisions of Section 7 of the Fair Labor Standards Act (“FLSA”), which requires, in part, that nonexempt employees be paid at the rate of one and one-half times their regular hourly rate for all hours worked beyond 40 in a work week.

Employers are now required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The duration and frequency of the breaks will depend upon the particular needs of the employee. As long as the duration and frequency are reasonable, breaks cannot be denied.

The amendment also requires that employers provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” If an employer does not have a dedicated location for nursing mothers, it can create a temporary space as long as it provides privacy from coworkers and the public and is shielded from view.

The break time requirement has a number of caveats. First, it only applies to nonexempt employees; i.e., those who are subject to FLSA’s overtime pay requirements. Employers are not required under FLSA to provide nursing breaks to exempt employees. Second, employers are not required to pay employees who take breaks to express their milk. But, if an employer compensates employees for other types of breaks, and an employee uses such a break to express her milk, she must be paid the same as other employees on break. Third, employers with fewer than 50 employees do not have to provide breaks to nursing mothers if doing so would impose an undue hardship. Whether an undue hardship exists “is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.” The 50-employee threshold is determined by counting all of an employer’s employees, regardless of their physical location.

Finally, the new FLSA break time requirement does not preempt state laws that provide greater protection to employees. According to a March 2010 report by the National Conference of State Legislatures, 24 states, plus the District of Columbia, and Puerto Rico currently have statutes related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wyoming). Many of these states extend break time to all employees, regardless of an employer’s size, require that the break time be paid, or extend the period for taking breaks beyond the one-year limit under FLSA.

Employers in states with existing laws governing breastfeeding in the workplace should have little trouble complying with the new federal law. Employers in states without such laws must adjust their policies and procedures to insure that they are in compliance with the new federal requirement.

Employers Cautioned on Unpaid Interns

Summer may be in the rearview mirror, but high school and college students across the country are still attempting to polish their resumes by taking unpaid internships with employers of all types. But “for-profit,” private-sector employers looking to provide students with a glimpse into the working world may find themselves at odds with the Fair Labor Standards Act (“FLSA”), the federal statute governing minimum wage and overtime payments. Using somewhat arcane language, the FLSA requires that non-exempt individuals who are “suffered or permitted to work” be compensated for the services they perform. The Department of Labor’s Wage & Hour Division has taken the position that interns working in the for-profit, private sector must be paid as employees unless each of the following six factors is satisfied:

  1. The internship, even though it includes actual operation of the employer’s facilities, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer derives no immediate advantage from the activities performed by the intern;
  5. The intern is not necessarily entitled to a job at the end of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

With the DOL cracking down on FLSA violations, employers utilizing interns –regardless of the season – are cautioned to examine the nature and purpose of the internship to determine whether each of these six criteria is satisfied. If even one of the criteria is not met, the intern must be compensated as an employee. Click here to view the DOL’s Internship Fact Sheet.