Employment Law Update – June 2018

Events

On June 7, 2018, Attorneys Patricia Rapinchuk, Jeffrey Trapani, and Hunter Keil presented an Employment Law Update for General Practitioners and Employment Lawyers for the Hampshire County Bar Association.  The attorneys discussed key Federal, state, and local employment developments including Massachusetts Equal Pay Act, Pregnant Worker Fairness Act, Rights for victims of domestic violence in the workplace, the Federal stalemate over exempt status, workplace effects of past State ballot initiatives, including earned sick time and legalizing the use of medical and recreational marijuana, and pending bills and ballot initiatives, including mandated paid leave, increased minimum wage, wage theft and the use of non-competes.

Legislative Update

Massachusetts

  • Wage Theft: A bill to prevent wage theft and to promote employer accountability has received additional support in the Legislature.  The bill would create joint and several civil liability for a contractor doing business with a subcontractor who fails to pay its employees.

Judicial Update

Federal

  • Supreme Court Upholds Workplace Arbitration Contracts Barring Class ActionsEpic Systems Corp. v. Lewis, No. 16-286. The Supreme Court held that that arbitration agreements in employment contracts for individualized proceedings must be enforced, and that the neither the savings clause from the Federal Arbitration Act nor the National Labor Relations Act suggest otherwise.  This holding prevented workers from banding together to take legal action over workplace issues because of their individual employment agreements. The class action lawsuits prohibited by the arbitration agreements at issue in this case can be a powerful tool for employees, and this decision is widely considered a win for employers.
  • FMLA and ADA:  Lipin v. Steward Healthcare Sys., LLC, 2018 U.S. Dist. CT. C.A. No. 16-12256-LTS.  A former employee sued his employer and others for wrongful termination in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”), the Americans with Disabilities Act, 42 U.S.C. § 12203 (“ADA”), and Massachusetts statutory law on fair employment practices, Mass. Gen. Laws. ch. 151B § 4(16) (“Chapter 151B”). The employer moved for summary judgment on the grounds that it had decided to terminate the plaintiff’s employment before he contracted pneumonia and took any leave from work.  The Court denied the motion in part and allowed it in part.  The Court held that, under either party’s theory, the reason for Plaintiff’s termination had been determined prior to, or independent of, his medical leave.  The Court found that because the employer had reached an employment decision without regard to any disability asserted by the plaintiff, the employer was not obligated to initiate an interactive dialogue with the plaintiff toward an accommodation that would have served only to forestall his termination.
  • Taxation of Costs and Fees:  Tarbell v. Rocky’s Ace Hardware, U.S. Dist. CT. C.A. No. 15-10033-JGD.  The plaintiff brought suit against his former employer alleging that the employer had discriminated against him due to his heart condition by taking various adverse job actions against him and, ultimately, terminating his employment. The suit against the employer survived a motion to dismiss. After discovery was completed, the employer moved for summary judgment and prevailed. The employer filed a Motion for Taxation of Costs and Fees seeking to recover attorney’s fees and costs claiming that the plaintiff’s case was frivolous.  The Court denied the motion.
  • False Claims Act:  Driscoll v. Simsbury Assocs., U.S. Dist. CT. C.A. No. 17-cv-12373-ADB.  Plaintiff filed a complaint against her former employer, asserting wage claims and claims arising from allegedly unlawful conditions of her employment. The employer filed a Motion to Dismiss.  With respect to the wage claims, the Court concluded that the Plaintiff had not stated any facts, in even rough or general terms, as to when she was denied money for work performed, how much money she was denied, how many hours she worked without pay, how frequently this occurred, how much vacation or sick time pay was accrued and denied, when the denial occurred, or what type of sickness benefit was promised but not delivered. Thus, the Count held that the allegations were not sufficient to suggest a plausible claim for a violation of the Wage Act, nor did they put Defendant on notice as to the claim against it.
  • Workplace Discrimination:  Young v. Brennan, U.S. Dist. CT. C.A. No. 16-12001-FDS.  Plaintiff was formerly a temporary employee of the United States Postal Service. Plaintiff was involved in a minor automobile accident, after which she took leave from work for almost eight weeks. The Postal Service did not approve that period of leave, and subsequently declined to renew her temporary appointment. Plaintiff brought this action against the Postmaster General, alleging that the Postal Service violated the Family Medical Leave Act; unlawfully retaliated against her for engaging in protected conduct; and discriminated against her on the basis of race, sex, and disability. The Court granted defendant’s motion to dismiss in part, dismissing all claims except plaintiff’s claims for race and gender discrimination in violation of Title VII. Defendant then moved to dismiss the complaint for lack of subject matter jurisdiction or, in the alternative, for summary judgment on the remaining claims. The motion to dismiss for lack of subject matter jurisdiction was denied, and the motion for summary judgment was granted on the basis that plaintiff had failed to put forth sufficient facts for a reasonable fact finder to infer that the employer’s decision was motivated by gender animus, even where the decision was preceded by a prior remark regarding her pregnancy.
  • Settlement of Unpaid Overtime:  Jones v. Smith, U.S. Dist. CT. C.A. No. 1:16-cv-02194.  To have an enforceable release under the FLSA (Fair Labor Standards Act), a court must approve any settlement agreement.  This will necessitate a public filing of the proposed settlement agreement with the court. Absent special circumstances, it is unlikely that a court will agree to file such an agreement under seal, and simply including a confidentiality provision in the agreement itself will likely not be enough to convince a court that the agreement should be sealed. Employers and their attorneys need to keep this in mind when considering potential resolutions of unpaid overtime claims.

Massachusetts

  • $28M Verdict for Retaliation Claim: Gessy Toussaint v. Brigham & Women Hospital et al, Suffolk Superior Court, C.A. No. 1484CV02253.  A Suffolk Superior Court jury has found that a Boston hospital retaliated against a Haitian-American nurse who stood up for a black colleague, awarding her $28 million. This case is a stark reminder of the potentially risks or rewards of taking employment cases to trial where emotional distress and punitive damages can be awarded.
  • Retaliation: Mooney v. Warren, 2018 Mass. App. No. 17-P-1234.  The plaintiff appealed from the entry of summary judgment against her in the Superior Court. On appeal she focused on two of her counts: one alleging that defendants the city of Newton, its former mayor Setti Warren, and its former police chief Matthew Cummings violated G. L. c. 151B by retaliating against her for lodging a claim of discriminatory acts by Cummings, and the other alleging a civil conspiracy among defendants Cummings, former police lieutenant Edward Aucoin, and former police department employee Vincent Nguyen.  While the Appeals Court agreed with the Motion Judge that the defendants carried their burden, in the light most favorable to Plaintiff, the evidence supported the inference that Nguyen and Cummings each harbored ill-will against Mooney for different reasons. The court also found that the summary judgment record provided no evidence of ill will on the part of Aucoin or any indication that he or Cummings had an agreement with Nguyen, or knowingly assisted or encouraged Nguyen, to pursue groundless charges. While there was evidence showing that they all acted independently to press charges, there is no evidence in the record that would warrant an inference of concerted action to pursue false charges.

 Administrative Law Update

Massachusetts

Equity firm to pay $550K over Intern:  A Boston private equity firm will pay more than $550,000 in restitution and penalties associated with wage law violations stemming from the improper classification of full-time employees as interns. The law regarding who can lawfully be classified as an unpaid intern has been evolving in recent years, and has received substantial attention by the media. The fact intensive analysis is still difficult to apply, and employers using


Employment Law Update – May 2018

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.