Massachusetts Governor Signs Pregnant Workers Fairness Act Into Law

As expected, on July 27, 2017, Massachusetts Governor Charlie Baker signed into law the Pregnant Workers Fairness Act, which expands protections for pregnant employees in Massachusetts. The new protections, which are being inserted into General Laws Chapter 151B––the Massachusetts anti-discrimination statute––prohibit employers from discriminating against employees on the basis of “pregnancy or a condition related to pregnancy, including but not limited to, the need to express breast milk for a nursing child.”

Under the new law, which takes effect April 1, 2018 (coincidentally, nine months from now), Massachusetts employers are prohibited from denying reasonable accommodation to a pregnant employee who requests such an accommodation, unless the employer can demonstrate that such an accommodation would impose an undue hardship on its business. Employers are likewise prohibited from terminating or refusing to hire someone because of their pregnancy.

For purposes of the new law, “reasonable accommodation” may include, but is not limited to: more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and non-bathroom space for expressing breast milk, assistance with manual labor, or a modified work schedule.

The term “undue hardship” means an action requiring significant difficulty or expense. It is the employer’s burden to prove that a requested accommodation constitutes an undue hardship. Factors to be considered include (i) the nature and cost of the requested accommodation, (ii) the employer’s overall financial resources, (iii) the overall size of the business, and (iv) the impact of the requested accommodation on the employer’s business.

As under the federal Americans With Disabilities Act, the employer and employee are required to engage in a timely, good faith interactive dialogue to determine an effective reasonable accommodation that will allow the employee to perform the essential functions her job. Employers are permitted to request documentation from a healthcare provider to support the employee’s request for accommodation; however, employees are not required to provide such documentation for the following accommodations: (i) more frequent restroom, food, or water breaks, (ii) seating, and (iii) limits on lifting more than 20 pounds.

Employers are required to provide written notice to employees of their right to be free from pregnancy discrimination, either in an employee handbook or by some other means. This include providing such information to any employee who notifies the employer of a pregnancy or a condition related to pregnancy within 10 days of such notification. While the new law does not become effective for nine months, employers should prepare to amend their employee handbooks and other policies to incorporate these new protections.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Massachusetts High Court Rules Firing Employee for Medical Marijuana Use is Discriminatory

On July 17, 2017, in the case of Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court ruled that an employee’s claim for discrimination could proceed when the employee was fired for using marijuana that was prescribed to treat her medical condition.

In Massachusetts, state law permits the use and possession of marijuana for medical treatment. In this case, the employer (Advantage Sales and Marketing, LLC) had a policy that prohibited any use of marijuana by its employees. The company’s policy was applied against its employee, Cristina Barbuto, who suffers from Crohn’s disease and who was prescribed marijuana by a licensed physician. According to the court, the termination of Ms. Barbuto in these circumstances could amount to discrimination based on the denial of reasonable accommodation to a handicapped employee

The court ruled that a company is not entitled to merely refer to its policy in determining how or whether to accommodate a handicapped employee, but instead must evaluate accommodations on a case-by-case basis:

[W]here an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it. If the employer, however, had a drug policy prohibiting the use of such medication, even where lawfully prescribed by a physician, the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.

Specifically with respect to medical marijuana, the court explained that an employer can be required to make exceptions to its drug policy:

Under Massachusetts law . . . the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 151B, § 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.

The court stated that an employer can be required to accommodate an employee’s marijuana use, despite the fact that possession of medical marijuana is still a violation of federal law.

Nevertheless, companies can still bar employees from using marijuana at work because, as the court also explained, Massachusetts law clearly “does not require ‘any accommodation of any on-site medical use of marijuana in any place of employment.’”

The court left open the possibility that the employer in this case may still prevail at a later stage of the proceedings if it can show that the employee’s use of medical marijuana would impose an undue hardship on the company’s business. For example, an employer in this circumstance might be able to “prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.” In addition, a company could demonstrate that permitting its employee to use medical marijuana constitutes an undue hardship if it proves that “the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business.” The court cited transportation companies as an example of companies that are regulated by the U.S. Department of Transportation, which requires that certain employees must refrain from using marijuana.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Salutes Veterans With New Paid Leave Law

On July 14, 2016, Massachusetts Governor Charlie Baker signed into law An Act Relative to Housing, Operations, Military Service, and Enrichment (“the HOME Act”) which, among other things, requires employers with 50 or more employees to provide paid leave for eligible military veterans to participate in community activities on Veterans Day. With Veterans Day (November 11) right around the corner, Massachusetts employers should ensure that their handbooks, policies, and practices are in compliance with the new leave requirements.

Prior to July 14, 2016, Massachusetts employers of all sizes were required to provide leave, paid or unpaid at the employer’s discretion, to military veterans to participate in Veterans Day or Memorial Day exercises, parades, or services. Now, under the HOME Act, employers with 50 or more employees must provide paid leave to veterans consisting of “sufficient time to participate in” Veterans Day events held in the veteran’s community of residence. Smaller employers (with fewer than 50 employees) must also provide leave for Veterans Day activities, but paying for the leave remains discretionary.

Employers are not required to provide such leave where a veteran provides services that “are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.”

The HOME Act also amended Mass. Gen Laws ch. 151B(4), the Massachusetts Fair Employment Practices Act, to add veteran status as a protected category, making it unlawful for Massachusetts employers to discriminate against individuals based on veteran status in hiring, firing, or compensation decisions.

Please do not hesitate to contact the employment attorneys at Beck Reed Riden for assistance in complying with the HOME Act.

Massachusetts Governor Signs New Pay Equity Bill Into Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed into law a bill replacing the state’s existing Equal Pay Act (M.G.L. c. 149, § 105A), which was first enacted in 1945. The new Act clarifies the concept of “comparable work” and expressly prohibits employer conduct that – intentionally or unintentionally – has historically contributed to the wage gap between male and female employees.

The new Act prohibits all employers from discriminating “on the basis of gender in the payment of wages, including benefits or other compensation, or pay[ing] a person a salary or wage rate less than the rates paid to employees of a different gender for comparable work.” The new Act clarifies the concept of “comparable work” by defining it as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” An employee’s job title or job description, by itself, will not determine comparability. Variations in compensation and benefits are not prohibited if based upon a bona fide seniority or merit system; a system under which earnings are measured by quantity or quality of production or sales; geographic location; education, training, or experience, provided such factors are reasonably related to the job and consistent with business necessity; or travel, if the travel is a regular and necessary condition of the particular job.

The new Act also expressly prohibits employers from engaging in the following:

  • Forbidding employees from inquiring about, discussing, or disclosing information about either their own compensation and benefits or those of other employees (already prohibited under the National Labor Relations Act);
  • Screening applicants based on their compensation and benefits or salary histories, including by requiring that an applicant’s prior compensation and benefits or salary history meet minimum or maximum criteria;
  • Requesting or requiring an applicant to disclose prior wages or salary history;
  • Seeking an applicant’s salary history from a current or former employer before making a job offer and without the applicant’s written authorization; and
  • Retaliating against an employee for opposing any act prohibited under the new law or participating in any action to enforce rights under the law.

The new Act also broadens the remedies available to aggrieved employees. It increases the statute of limitations from one year to three and creates a continuing violation provision under which a new limitations period will be triggered each time an employee is paid in violation of the law (similar to the federal Lilly Ledbetter Fair Pay Act of 2009). Employees may file an action directly in court, without having to first file with the Massachusetts Commission Against Discrimination or the Attorney General’s Office. Employers found to be in violation of the new law are automatically liable for double damages and reasonable attorneys’ fees. The Attorney General may also bring an action on behalf of one or more aggrieved employees.

Finally, the new Act creates an affirmative defense for an employer who, within three years of the commencement of an action, has completed a good faith self-evaluation of its pay practices and can demonstrate that reasonable progress has been made towards eliminating gender-based pay differentials in accordance with such evaluation. An employer may design its own self-evaluation as long as it is reasonable in detail and scope in light of the employer’s size. Employers may also utilize templates and forms to be issued by the Attorney General’s Office.

The new Act does not become effective until July 1, 2018. This gives employers plenty of time to review their current pay practices and make any changes necessary to comply with the new statutory requirements. Beck Reed Riden’s experienced employment lawyers are available to assist employers with this task.

EEOC Charge Filings Remained High in 2012

In a January 28, 2013 press release, the Equal Employment Opportunity Commission (EEOC) announced that it received 99,412 private sector workplace discrimination charges during fiscal year 2012. Filings were down very slightly from a high of 99,947 in 2011.  Retaliation claims continued to lead the pack, with 37,836 (38.1%) charges filed, followed closely by race with 33,512 (33.7%) and sex (including sexual harassment and pregnancy claims) with 30,356 (30.5%).  Disability claims were next, with 26,379 (26.5%) charges filed.  Rounding out the top five were age claims, with 22,857 (23%) charges filed.  You can find a complete chart of the EEOC’s charge statistics here.

The EEOC also reported that, in addition to non-monetary benefits, it secured just over $365 million from private sector and state and local government employers through its administrative enforcement process, including mediation, settlements, conciliations, and withdrawals with benefits.  This was a new high in amounts recovered.

In light of the relatively constant number of charges filed over the past few years and the ever-increasing dollars recovered, employers must remain committed to treating their employees in accordance with state and federal anti-discrimination laws.  As previously reported, even meritless claims cost employers time and money to defend – time and money that instead should be devoted to running their businesses.  Employers with questions about how to handle a particular employee matter should consult with knowledgeable employment counsel before taking action.

California Jury Awards $168 Million To Plaintiff In Harassment Suit

In what is believed to be the largest jury award to a single plaintiff in United States history for workplace harassment, a federal jury in Sacramento on February 29, 2012 awarded a whopping $168 million to an employee who allegedly complained more than 18 times during her two-year tenure that she was being harassed at work. Plaintiff Ani Chopourian worked as a physician’s assistant on the cardiovascular surgical team at Mercy General Hospital, a unit of Catholic Healthcare West (now Dignity Health). She alleged that she was subjected to a barrage of harassing behavior by the surgeons she worked with, including being stabbed with a needle and being called “stupid chick.” She claimed that one doctor greeted her each morning by saying “I’m horny” and slapping her on the butt. Another doctor allegedly made disparaging comments about her Armenian ethnicity, asking her if she was a member of Al Qaeda. Chopourian was fired after complaining to hospital management about patient care issues and the harassment. The hospital defended itself by claiming that Chopourian was terminated for professional misconduct.

In what must have sent shivers through the spines of the attorneys representing the hospital, shortly before rendering its verdict the jury sent a note to District Court Judge Kimberly J. Mueller asking for a calculator. (Not a good sign.) One hour later the jury returned its verdict, awarding Chopourian $42.7 million in lost wages and emotional distress and $125 million in punitive damages.

Not surprisingly, the hospital has said it will appeal the verdict.

Regardless of whether the jury’s massive award ultimately stands, this case is a shining example that employers must respond appropriately when faced with employee complaints of harassment. Such complaints cannot be ignored; they must be fully investigated by someone experienced in workplace harassment issues. And if a complaint is determined to have merit, the alleged harasser must be dealt with in a manner that ends the harassing conduct, even if that means terminating your star cardiac surgeon or some other employee that was previously deemed indispensible. Failing to adequately respond to a harassment complaint can (and usually will) end badly for the employer.

New Massachusetts Law Protects Transgender Individuals

On November 23, 2011, Massachusetts Governor Deval Patrick signed into law “An Act Relative to Gender Identity.” The new law prohibits – among other things – workplace discrimination on the basis of one’s “gender identity.” Massachusetts is now one of sixteen states to include transgender individuals as a protected class in anti-discrimination laws. The statute will take effect on July 1, 2012. In addition to employment, it prohibits discrimination in housing, mortgage loans, and credit. It also protects transgender individuals under existing hate crime laws.

Who is protected by the new legislation?

The statute defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The statute provides that gender identity “may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of the person’s core identity.”

How does the new law affect employers?

In light of this change in the law, employers should change their employee handbooks, equal employment opportunity statements, and anti-harassment policies to specifically include gender identity as a protected class. Employers should also include gender identity as part of any future anti-harassment training programs so that all workers are informed of the issue.

Managers should be educated to take appropriate action if they become aware of any discriminatory conduct directed against an employee on the basis of his or her gender identity. Failure to take appropriate action may lead to liability on the part of the employer and the individual manager.

Employers should also be sensitive to an employee’s wishes to be referred to by a name that is different from the employee’s legal name. Sensitivity is also warranted in the use of pronouns that are appropriate to the employee’s gender-identity and in dress code requirements. As common sense would dictate, employers should also refrain from inquiring about any medical procedures the employee may have received.

Thanks to Miki Matrician for her help with this post!