Employment law has become a shifting landscape, making it challenging for even the most diligent employers to remain up to date. To help you navigate this terrain, Robinson Donovan’s Employment Law Group posts this monthly update regarding important cases, legislation, or other events.


Legislative Update

Massachusetts

  • Pregnant Workers Fairness Act:  On April 1, 2017, the PWFA went into effect providing additional rights to employees by requiring their employers to accommodate and not discriminate against pregnant employees and new mothers. The statute requires employers to provide notice to its employees in writing, and employers should update their policies in conformity with this legislation.
  • Equal Pay Day:  April 10 was designated “Equal Pay Day.”  This marks an ideal moment for employers to take a look at the wages paid to their employees. The Pay Equity Act goes into effect on July 1, 2018.  Employers who complete a full audit in compliance with the statute are afforded a full defense to a state claim under the pay equity act or a claim of discriminatory payment on the basis of gender under Massachusetts’ general anti-discrimination statute Chapter 151B.
  • Excessive 15-Minute Breaks Are Not Compensable:  Employers can rest easy knowing that they do not have to pay employees for unlimited rest breaks simply because they are necessitated by an FMLA-approved serious health condition. Employers should carefully administer and track any such breaks to ensure compliance with both the FMLA and FLSA—along with any applicable state or local laws (e.g., local paid sick leave laws and required paid rest breaks).
  • Ballot Questions: There are several important ballot questions that will be presented to voters in November 2018 that will affect businesses and employers, including the following, which are available at mass.gov/ago/government-resources/initiatives-and-other-ballot-questions
  • (1) 17-17, An Initiative Petition for a Law Raising the Minimum Wage.
    According to the Attorney General, this “proposed law would raise the state’s minimum wage, which was $11.00 per hour as of January 1, 2017, to $12.00 in 2019; $13.00 in 2020; $14.00 in 2021; and $15.00 in 2022.  The proposed law would also raise the minimum cash wage that must be paid to tipped employees, which was $3.75 per hour as of January 1, 2017, to $5.05 in 2019; $6.35 in 2020; $7.64 in 2021; and $9.00 in 2022.”
  • (2) 17-18, An Initiative Petition for a Law Establishing a Paid Family and Medical Leave Insurance Program.
    According to the Attorney General, this proposed law would allow covered workers to take family leave and receive 90% of their average weekly earnings up to $1,000 per week, for up to 16 weeks of family leave or 26 weeks of medical leave.  It also creates a trust fund for the leave.
  • (3) 15-17, An Initiative Petition for an Amendment to the Constitution of the Commonwealth to Provide Resources for Education and Transportation through an additional tax on Incomes in Excess of One Million Dollars.
    According to the Attorney General, “this proposed constitutional amendment would establish an additional 4% state income tax on that portion of annual taxable income in excess of $1 million. This income level would be adjusted annually to reflect increases in the cost of living by the same method used for federal income-tax brackets. Revenues from this tax would be used, subject to appropriation by the state Legislature, only for public education, public colleges and universities, the repair and maintenance of roads, bridges, and public transportation. The proposed amendment would apply to tax years beginning on or after January 1, 2019.”

    Arguments regarding the constitutionality of this proposed amendment were made to the Supreme Judicial Court on February 6, 2018, and an opinion is pending.

Judicial Update

Federal

  • Bad Faith Discrimination Claim:  Santamaria v. Greenfield Community College, U.S. Dist. CT., C.A. No. 17-cv-30121-MAP.  Defendant employer contends that Plaintiff employee’s discrimination claim was not made in “good faith” because Plaintiff was aware that his termination was imminent for non-discriminatory reasons at the time he made the filing. In ruling on a Motion to Dismiss, the Court found that the argument suffered from at least two problems: First, it was based on documents not within the four corners of the complaint. Second, the bad-faith scenario relied upon by Defendant may be subject to different interpretations after completion of discovery. The Court found that Defendant’s argument could be offered again at the summary judgment stage anchored on a full record, but it was insufficient to justify dismissal.
  • Discriminatory Animus:  Gautreau v. Hopkinton Public Schools, et al., U.S. Dist. CT., C.A. No. 1:16-cv-10017-RWZ.  In sum, plaintiff employee’s contentious history with the principal of the school does not, without more, amount to evidence of discriminatory animus based on age. (“Regardless of its bulk, [plaintiff’s] evidence had nothing at all to do with age or with the employer’s true motives . . . Viewed singly or in combination, these fragments would not allow a rational jury to find that [employer] had a hidden, age-oriented agenda.”). Where plaintiff has failed to rebut defendants’ proffered nondiscriminatory explanation, summary judgment for defendants is appropriate.
  • Reasonable Accommodation:  Sepúlveda-Vargas v. Caribbean Restaurants, LLC, U.S. Dist. CT., C.A. No. 16-2451. Where a defendant employer refused a plaintiff assistant manager’s request for fixed shifts instead of rotating shifts as an accommodation for his post-traumatic stress, the defendant did not violate the Americans with Disabilities Act, as the plaintiff was not qualified to perform the essential job functions required of assistant managers.
  • Paid Administrative Leave: Herman, et al. v. Coloplast Corp., et al. U.S. Dist. CT., C.A. No. 11-12131-RWZ.  A recent ruling from the U.S. District Court may surprise employers who, as a matter of course, place employees being investigated on paid administrative leave. Here, the Court held that, depending on circumstances, paid administrative leave might constitute a materially adverse employment action sufficient to prove an unlawful retaliation claim against the employer.

Massachusetts

  • FMLA Liquidated Damages: Richard DaPrato v. Massachusetts Water Resources Authority, Suffolk Superior Court, C.A. No. 2015-3687-D.  Where a jury returned a verdict in favor of a plaintiff employee for retaliation under state and federal disability discrimination laws and the federal Family and Medical Leave Act, the plaintiff should be awarded liquidated damages under the FMLA, as well as front pay.

Administrative Law Update

Massachusetts

  • Medical Marijuana Gene A. St. Pierre, et al. v. Workers’ Compensation Trust Fund, Department of Industrial Accidents, Board No. 014647-12.  An administrative law judge ruled that the Workers’ Compensation Trust Fund was required to reimburse a Vermont resident for the use of medical marijuana obtained in Vermont to treat a workplace injury sustained in Massachusetts.  This decision is one more indication of the integration of medical marijuana into Massachusetts’ law.  Employers faced with employees who use medical or recreational marijuana should be aware of this evolving area of law, and decisions such as this which side with employees using marijuana.