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 Poised To Pass Law To Protect Pregnant Workers

As reported in The Boston Globe, the Massachusetts legislature passed a bill to protect pregnant workers and sent the bill to the governor’s desk for his signature on July 20, 2017.

According to the Globe,

Governor Charlie Baker is supportive of the bill’s provisions and will review it carefully, said communications director Lizzy Guyton.

The Pregnant Workers Fairness Act would require employers to provide “reasonable accommodation” for pregnant women, giving them the right to less strenuous duties, more frequent breaks, and temporary transfers, among other provisions, provided they don’t cause a business “significant difficulty or expense.” New mothers would also have the right to time off to recover from childbirth and a private space to express breast milk.

Similar measures have been passed in 21 states, and Washington, D.C., and a comparable federal bill was reintroduced in Congress in May.

The text of the Massachusetts Pregnant Workers Fairness Act is available here.

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 companiesto 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.

DOL Withdraws Independent Contractor and Joint Employer Guidance

DOL’s Withdrawal of Independent Contractor and Joint Employer Guidance Signals Shift Under Trump Administration (But Massachusetts Employers Should Not Rest Easy)

On June 7, 2017, the United States Department of Labor withdrew with immediate effect two interpretive guidances issued during the Obama Administration, one dealing with the definition of independent contractor under the Fair Labor Standards Act (“FLSA”) (Administrator’s Interpretation No. 2015-1), and the other dealing with what it means to be a joint employer under the FLSA and the Migrant and Seasonal Agricultural Workers Protection Act (Administrator’s Interpretation No. 2016-1).

Both guidances broadened the protections afforded workers under the FLSA. Interpretation No. 2015-1 reinforced the DOL’s reliance on the “economic realities” test to conclude that most workers should properly be classified as employees rather than independent contractors. Similarly, Interpretation 2016-1 provided that the concept of joint employment “should be defined expansively.”

In its press release announcing the withdrawal, the DOL cautioned that employers’ legal responsibilities under the FLSA have not changed, “as reflected in the Department’s long-standing regulations and case law.” It remains to be seen, though, whether the DOL will continue to focus its attention on these particular issues the way it did under the previous administration. Given the current administration’s eagerness to roll back policies implemented by its predecessor, continued attention seems unlikely.

However, at least with respect to independent contractors, Massachusetts employers should not rejoice just yet. The Massachusetts Independent Contractor Statute (G.L. c. 149, § 148B), first enacted in 1990, remains the law of the land for employers in the Commonwealth. Under this statute (last amended in 2004), a worker is presumed to be a W2 employee unless each prong of the following three-part test is satisfied:

Prong One:  Freedom From Control

The worker must be free from direction and control in connection with the performance of services, both under their contract and in fact. An actual independent contractor performs their services using their own approach, dictating when and how the work will be accomplished, and with minimal direction from the party receiving the services.

Prong Two:  Service Outside the Usual Course of the Employer’s Business

The service the worker performs must be outside the usual course of the employer’s business. For example, a “contract” attorney engaged by a law firm to perform document review is engaged in the usual course of the law firm’s business and, thus, would not satisfy this prong of the test. On the other hand, a plumber hired to repair a leaky faucet in the law firm’s office would satisfy this prong because the law firm is not engaged in the plumbing business.

Prong Three:  Independent Trade, Occupation, Profession, or Business

The worker must be customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service being performed. If the worker must depend on a single employer for the continuation of the service performed, they will be found to be an employee, not an independent contractor.

The second prong of the three-part test makes it all but impossible for a Massachusetts employer to lawfully engage an individual as a true independent contractor when the services being performed by the individual fall within the usual course of the employer’s business, even when the individual satisfies the first and third prongs of the test.

In many cases, employers engage independent contractors to augment their workforce to meet production or service demands without realizing they are running afoul of the Independent Contractor Statute. Other employers intentionally use independent contractors to get around payroll taxes, workers’ compensation, and other benefits obligations. Regardless of the reason or intent, an employer will be in violation of the Independent Contractor Statute whenever the would-be independent contractors are performing services that fall within the employer’s usual course of business.

An employer found in violation of the Independent Contractor Statute is subject to treble damages and reasonable attorneys’ fees resulting from the misclassification and violation of one or more of the following:

  • The Wage Act
  • The Minimum Wage Law
  • The Overtime Law
  • Laws requiring employers to keep accurate payroll records
  • Tax withholding laws and regulations
  • The Workers Compensation Act

(See Lauren Corbett’s June 28, 2017 post on the Supreme Judicial Court’s recent decision regarding prejudgment interest on damages awarded for Wage Act violations).

More information regarding the Independent Contractor Statute can be found in the Attorney General’s 2008/1 Advisory.

The bottom line with respect to independent contractors in Massachusetts is that, while the U.S. Department of Labor may no longer be as concerned about employers classifying workers as independent contractors rather than employees, the Massachusetts Attorney General’s Office and a host of plaintiff-side employment lawyers certainly are. Massachusetts employers concerned about how they are classifying their workers should consider conducting an audit to determine whether their workers are properly classified under Massachusetts law.

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 SJC Takes Interest in Wage Act Claims

On June 26, 2017, the Massachusetts Supreme Judicial Court issued its decision in the case of George, et. al. v. National Water Main Cleaning Company, which addressed the question of whether statutory prejudgment interest is available for claims brought under the Massachusetts Wage Act. The underlying case involved a class action brought by a group of employees against their employer for nonpayment of wages. The SJC, which heard the case as a certified question of law from the United States District Court for the District of Massachusetts, held that interest should be added to the amount of lost wages and other benefits awarded as damages, but not to the additional amount of the award arising from the trebling of damages under the statute.

In issuing its decision, the Court considered the legislative history of the Wage Act and its damages provisions. In particular, it noted that in 2008, the statutory interest language was amended to make treble damages mandatory as “liquidated damages.” The debate between the parties was whether the characterization of the damages as “liquidated” precluded the application of statutory prejudgment interest. The Court found that it did not, holding that to interpret “liquidated” in a way that would preclude prejudgment interest would be to impliedly repeal the interest statutes. Instead of taking such a drastic measure, the Court found that the two statutes could be read in harmony by applying prejudgment interest only to the portion of the award reflecting lost wages and benefits, not to the portion reflecting liquidated damages.

Although the Court’s holding means employers won’t be hit with interest on the treble damages portion of a Wage Act claim, Massachusetts employers should still take great care to comply with the requirements of the Wage Act in order to minimize potential liability.

– Lauren Corbett

blf-badge-2017Beck 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.

New Massachusetts Law Mandates Employee Leave For Victims Of Domestic Abuse

On August 8, 2014, Massachusetts Governor Deval Patrick signed into law a new statute requiring employers with 50 or more employees to allow employees to take up to 15 days of unpaid leave within a 12-month period when an employee or an employee’s family member is the victim (not the perpetrator) of domestic abuse. The new law (M.G.L. c. 149, § 52E), which took immediate effect upon signing, allows victims of domestic abuse to take time away from work to:

  • seek or obtain medical attention, counseling, victim services, or legal assistance;
  • secure housing;
  • obtain a protective order from a court;
  • appear in court or before a grand jury;
  • meet with a district attorney or other law enforcement official;
  • attend child custody proceedings; or
  • address other issues directly related to the abusive behavior against the employee or the employee’s family member.

Employees taking leave under the statute must first exhaust all of their accrued paid time off (if any) before receiving unpaid leave.

An employee must provide the employer with advance notice of the need for leave, unless there is a threat of imminent danger to the health or safety of the employee or a member of the employee’s family. In the event an employee is not able to provide advance notice of the need for leave, the employee must notify the employer within three (3) workdays that leave was taken for a reason related to domestic abuse. Such notification may be communicated to the employer by the employee, a family member of the employee, the employee’s counselor, social worker, health care worker, legal advocate, or other professional who has assisted the employee in addressing the effects of the abusive behavior.

An employee taking leave the statute may be required to provide the employer with documentation evidencing that the employee or the employee’s family member has been the victim of domestic abuse. Any one of the following forms of documentation will be acceptable:

  1. A protective order, order of equitable relief, or such other court order issued as a result of the abusive behavior against the employee or the employee’s family member.
  2. A document on the letterhead of a court, health care provider, or public agency that the employee attended for purposes of acquiring assistance as it relates to the abusive behavior against the employee or the employee’s family member.
  3. A police report or victim/witness statement provided to police, including a police incident report, documenting the abusive behavior against the employee or the employee’s family member.
  4. Documentation that the perpetrator of the abusive behavior has pled guilty, been convicted of, or been judged a juvenile delinquent by reason of any offense constituting abusive behavior against the employee or the employee’s family member.
  5. Medical documentation of treatment received as a result of the abusive behavior complained of by the employee or the employee’s family member.
  6. A sworn statement provided by a counselor, social worker, health care worker, legal advocate, or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior.
  7. A sworn statement from the employee attesting that he or she has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

All information regarding an employee’s leave for reasons related to domestic abuse must be kept confidential and may not be disclosed, except to the extent it is (i) requested by the employee in writing, (ii) ordered to be released by a court; (iii) otherwise required by applicable state or federal law; (iv) required in the course of an investigation by law enforcement; or (v) necessary to protect the safety of the employee or other company employees. Employers may maintain such documentation only for as long as it takes to determine whether an employee is eligible for leave under the statute.

In the event of an unauthorized absence due to domestic abuse, an employer may not take any adverse action against an employee as long as the employee provides the employer with any of the documentation listed above within 30 days of the last day of such unauthorized absence.

Taking leave under the statute may not result in the loss of any employment benefits accrued prior to the date on which such leave begins. Upon return from leave, employees must be restored to their original or equivalent position. Employers may not retaliate or discriminate against any employee who takes leave under the statute.

The Massachusetts Attorney General has authority to enforce the statute. Employees also have the right to bring a private action for violation of the law. Employers found to have violated the law will be subject to mandatory treble damages and attorneys’ fees.

The statute also requires employers to notify their employees of their rights under the law. Consequently, employers should immediately update their employee handbooks or issue a stand-alone policy setting out the new domestic violence leave requirements.

Thanks to Hannah Joseph and Shannon Lynch for contributing to this post.