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 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.

Massachusetts AG Issues Long-Awaited Final Earned Sick Time Regulations

Last November, Massachusetts voters approved Ballot Question Four, which amends the Massachusetts Wage Act and creates new mandatory sick time for Massachusetts employees beginning July 1, 2015. Under the new law, private employers must allow their Massachusetts employees to earn and use up to 40 hours of sick time per calendar year. Whether the sick leave is paid or unpaid depends on the size of the employer. Employers with 11 or more employees must provide paid sick leave, while employers with ten or fewer employees must provide unpaid sick leave.

Final Earned Sick Time Regulations

On June 19, 2015, the Massachusetts Attorney General issued the long-awaited Final Earned Sick Time Regulations, 940 CMR 33.00 et seq., which can be accessed here.

The Final Regulations contain a number of revisions and clarifications of earlier proposed versions, including:

  • Employers may require employees to use earned paid sick time to receive pay when taking other authorized leave that would otherwise be unpaid, such as FMLA leave or Massachusetts Parental Leave.
  • Employees can use earned sick time for travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
  • Further clarification on breaks in service relative to the use of accrued sick time and vesting periods.
  • The circumstances under which an employer can require documentation in support of an employee’s use of earned sick time have been expanded. For example, an employer can require documentation if an employee takes earned sick time within 2 weeks of the employee’s last day of employment.
  • Employees must submit requested documentation related to the use of earned sick time within 7 days after the earned sick time is taken, unless they demonstrate good cause for not doing so. (The earlier proposed regulations had a 30-day timeframe for producing documentation.)
  • If an employee fails to provide the required documentation related to the use of earned sick time without reasonable justification, the employer may recoup the earned sick time paid to the employee from future pay, as an overpayment. However, employers must put employees on notice of this practice.

Safe Harbor for Employees with Existing Paid Time Off Policies

The Attorney General has created a “Safe Harbor” for qualifying employers to help them comply with the new law. Under the Safe Harbor provision, employers with a paid time-off or sick leave policy that has been in existence since at least May 1, 2015 do not have to implement a new sick time policy, provided the existing policy provides for sick time comparable to that required under the new law. Employers that qualify under the Safe Harbor have until January 1, 2016 to bring their PTO/sick time policies into full compliance with the earned sick time law. In addition to the Final Regulations, information about the Safe Harbor can be found here.

Notice Obligations

On or before July 1, employers are required to post the Attorney General’s notice regarding Earned Sick Time in a conspicuous place accessible to employees in every location where eligible employees work. The required notice can be accessed here. Employers are also required to provide a hard copy or electronic copy of this notice to all eligible employees or include the employer’s earned sick time policy in any employee handbook.

Next Steps

  1. No later than July 1, 2015, employers should determine whether they can rely on the Safe Harbor through December 31, 2015, or whether they need to update their paid time off policies. Employers that qualify for the Safe Harbor need to ensure that their paid time off policies are fully compliant with the Earned Sick Time Law by January 1, 2016.
  1. No later than July 1, 2015, employers should post the AG’s workplace notice and either distribute copies of the notice or include their relevant paid time off policies in their employee handbook.
  1. Employers need to ensure that their revised paid time off policies are consistent with their related policies including, but not limited to, attendance, tardiness, and call-in procedures.

The attorneys at Beck Reed Riden are available to assist businesses in complying with the new Earned Sick Time Law.

Authored by Shannon Lynch.

Massachusetts Attorney General Issues Advisory On New Domestic Violence Leave Law

On August 8, 2014, Massachusetts Governor Deval Patrick signed into law a statute requiring employers with 50 or more employees to allow employees to take up to 15 days of leave within a 12-month period when an employee or an employee’s family member is the victim of domestic abuse. (We described the new law in our earlier post New Massachusetts Law Mandates Employee Leave For Victims Of Domestic Abuse.) The Massachusetts Office of the Attorney General recently issued advisory materials to aid Massachusetts businesses in complying with the new law (the “Advisory”). Among other things, the Advisory clarifies two issues – the definition of employee and the employer’s notice requirement under the new law.

While the domestic violence leave law applies to businesses “who employ 50 or more employees,” the Advisory clarifies that only employees working in Massachusetts count towards the 50-employee threshold. Therefore, in determining whether an employer is subject to the new law, a company should count the total number of employees (including full-time, part-time, and seasonal) it has working in Massachusetts; employees working in other states don’t need to be counted.

The Advisory also makes clear that while an employer must notify its employees of their rights and responsibilities under the law, there is no specified manner for such notice. The Advisory suggests proper notice may include an employee handbook policy; a memorandum to employees; a letter or email to employees; or a physical posting of the notice or policy in a conspicuous place. Since an employer may decide whether the leave will be paid or unpaid and whether an employee must first exhaust other paid time-off before becoming eligible for the domestic violence leave, employers should address these issues in any policy or notification.

The end of the calendar year is the perfect time for businesses to think about updating their employee handbooks and policies, particularly given the recent developments in Massachusetts leave laws. The attorneys at Beck Reed Riden are available to assist businesses with updating their relevant policies to ensure compliance with federal and Massachusetts law in the new year.

New Mandatory Sick Time for Mass. Employees

Last week, Massachusetts voters approved Ballot Question Four, which amends the Massachusetts Wage Act and creates new mandatory sick time for Massachusetts employees. Beginning July 1, 2015, private employers must allow their Massachusetts employees to earn and use up to 40 hours of sick time per calendar year.

Whether the sick leave is paid or unpaid depends on the size of the employer. Employers with 11 or more employees must provide paid sick leave, while employers with ten or fewer employees must provide unpaid sick leave. Full-time, part-time, and temporary employees all count toward the 11-employee threshold. Unfortunately, the new law does not specify whether employees who work outside of Massachusetts should be included in the employee count.

Under the new law, sick time is to be earned at the rate of a minimum of one hour for every 30 hours worked, up to 40 hours per calendar year. For purposes of accrual, employees exempt from overtime under the Fair Labor Standards Act will be presumed to work 40 hours per week unless their normal workweek is less than 40 hours. Employees may only begin to use the accrued sick time after 90 days of employment. Employees may carry over up to 40 hours of earned sick time into the next calendar year, but may not use more than 40 hours of sick time in a given calendar year. Importantly, employers are not required to pay out earned, unused sick time upon termination of employment.

Employees may use earned sick time to: 1) care for the employee’s child, spouse, parent, or parent of a spouse with a physical or mental illness; 2) care for the employee’s own physical or mental illness; 3) attend routine medical appointments for the employee or the employee’s child, spouse, parent, or parent of a spouse; or 4) address the psychological, physical, or legal effects of domestic violence.

If the use of earned sick time is foreseeable, an employee must give his or her employer advance notice of it. An employer may require an employee to provide written certification from a relevant health care provider if the employee uses more than 24 consecutive scheduled work hours of sick time. However, the employer is not permitted to delay the employee’s use of earned sick time or delay paying for the period in which earned sick time was taken based on the employee’s failure to provide certification for the absence.

The Massachusetts Attorney General will enforce this new law, which also prohibits employers from interfering with an employee’s right to earn or use sick time and retaliating against an employee for supporting another employee’s exercise of such rights. Aggrieved employees can, after filing a complaint with the Attorney General, bring a private right of action in court for sick time violations. Complying with the new law is important because failure to do so entitles employees to mandatory treble damages, litigation costs, and attorneys’ fees for proven violations.

An employer with paid time-off policies equivalent to, or more generous than, those required under the new sick time law are not obligated to change their existing policies and/or provide additional paid sick time. However, in advance of the July 1, 2015 effective date, employers with Massachusetts employees should: ensure that they have the proper procedures in place to calculate, monitor, and document the accrual, use, and carry over of sick time; carefully evaluate and, if necessary, update their relevant paid time-off policies for compliance with the new law; and provide corresponding training to their managers and HR staff.

Authored by Shannon Lynch with help from Stephanie Cipolla and Faith Hill.

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.