School Bus Driver Busted for Marijuana Use

by Stefanie M. Renaud

Last month, 63-year-old New Hampshire resident Ali Mahfuz made headlines across Massachusetts after he was arrested for reporting to the Chelmsford High School allegedly under the influence of marijuana.  Mahfuz, a school bus driver for North Reading Transportation, was scheduled to take the Chelmsford students on a field trip roughly one hour after he finished dropping off students at nearby high school.  On his way to Chelmsford, Mahfuz pulled over, and he can be seen on the bus’s video surveillance sleeping, but not smoking, during the stop.  However, when students boarded the bus in Chelmsford, they smelled “a strange odor” and alerted a teacher.  The teacher summoned the principal, who, with other administrators, determined that the strange odor was marijuana, at which point the administrators removed the students from the bus and called the police.  According to police, Mahfuz had glassy eyes, was speaking in a “slow and deliberate” manner, and had a glass pipe and small amount of marijuana in his possession.  According to North Reading Transportation, Mahfuz admitted to smoking marijuana between his assignments.  Although not reported, it is almost certain that Mahfuz has already lost his job because of this incident.

As the legalization of medical and recreational marijuana has spread – nearly 80 million Americans now have access to some form of legalized marijuana – confusion about the rights of employees who partake has abounded.  Days after the 2016 election, which legalized marijuana for recreational use in Massachusetts, I received a call from a school bus driver of nearly 30 years.  This person was curious if the new recreational marijuana law meant that they could use when off-duty and still keep their job.  In short: No!  Regardless of the Commonwealth’s marijuana law, employees can still be fired for their off-duty marijuana use, and worse, this person could risk losing their professional licensure for life.  But how can that be, when using marijuana is legal in Massachusetts?

School Bus Drivers are Special

The distinction for school bus drivers, as well as certain other professional drivers, is that they are not only subject to state and local laws, but also a number of federal regulations specific to employees in “safety-sensitive positions.”  Safety-sensitive positions include pilots, truck drivers, train engineers, and boat captains, as well as school bus drivers.

At the federal level, employees holding safety-sensitive positions are subject to regulations issued by the United States Department of Transportation (“DOT”) and the Federal Motor Carrier Safety Administration (“FMCSA”).  Under these regulations, all employees in safety-sensitive positions are subject to pre-employment, post-accident, reasonable-suspicion, and random drug and alcohol screenings.  Employers are required to conduct drug testing in accordance with the regulations, and drivers who test positive are banned from operating safety-sensitive equipment until they complete a DOT-required return-to-work program.  Under the regulations, a driver tests positive for marijuana if they have more than 50 nanograms of marijuana metabolites in their blood at the time of hire, or if they have more than 15 nanograms during active employment.

In very limited circumstances, such as drivers who use certain opioid painkillers, the DOT regulations allow a positive drug test to be “verified” as negative, but only if the driver is using the medication for a “legitimate medical explanation.”  With the increasing availability of medical marijuana and decreased criminal enforcement at the federal level, many suspected that the DOT would allow a similar exception for safety-sensitive employees who use marijuana with a legitimate medical explanation.  However, the DOT issued statements in 2009, 2012, and 2016 stating in no uncertain terms that, even when prescribed under a state law, “it remains unacceptable for any safety-sensitive employee subject to [DOT] drug testing . . .to use marijuana.”  This is because marijuana is still classified as a Schedule 1 controlled substance under federal law.  Consequently, change, if it ever comes, will have to start with the White House’s Office of National Drug Control Policy, an unlikely proposition under the current administration.

At the state level, Massachusetts school bus drivers and other professional drivers are required to hold a Commercial Driver’s License (“CDL”).  In Massachusetts, CDL drivers who are caught driving any vehicle under the influence of drugs or alcohol lose their CDL for one year upon the first offense, and then for life upon the second offense.  Drivers can also lose their CDL if they are convicted of any felony related to the manufacturing, distributing, or dispensing of controlled substances, including marijuana.  This means that safety-sensitive employees required to hold a CDL are potentially subject to penalties under both state and federal law, even though using marijuana is technically legal in the Commonwealth.

Takeaways

For safety-sensitive employees and CDL drivers the law is clear: use marijuana and you will most likely lose your job, and you could lose your ability to drive professionally for the remainder of your life.  As courts across the country, including in Massachusetts, have repeatedly found: employers have the right to maintain and enforce “zero-tolerance” drug policies, because marijuana remains illegal under federal law.  (For more on that, check out this blog post)  In Massachusetts, this means that an employer can terminate an employee or applicant who tests positive for marijuana, even if the employee is using it pursuant to a valid prescription.  Employers should note, however, that a case currently pending before the Supreme Judicial Court could change the state of the law in Massachusetts.  A decision in that case is expected this summer

Posted in Drug Testing | Leave a comment

Legislators Renew Attempt to Provide FMLA Leave for Death of a Child

by Stefanie M. Renaud

At a time when bipartisanship is hard to come by, some members of Congress have reached across the aisle to propose a “common sense” modification of the Family Medical and Leave Act (FMLA).  In general, the FMLA requires employers with 50 or more employees to provide employees with up to twelve weeks of leave in a 12-month period for qualifying medical and family reasons, such as the birth, adoption, or foster care placement of a child, the employee’s or a family member’s serious health condition, and certain circumstances related to the military service of an employee’s family member.  The FMLA also provides employees with up to 26 weeks of leave in a 12-month period to provide care for the serious injury or illness of a covered family member in the military.

Now, some legislators are looking to add an additional leave entitlement to the FMLA.  On March 16, 2017, Representatives Martha McSally, R-Ariz., Barbara Comstock, R-Va., Paul Gosar, R-Ariz., Don Beyer, D-Va., Brad Schneider, D-Ill., and Thomas Suozzi, D-N.Y., introduced a House bill (H.R. 1560) that would trigger a parent’s right to FMLA leave upon the death of a child.  Earlier in March, Sen.  Jon Tester, D-Mont., introduced a similar bill (S. 528), which has since been referred to the Senate Committee on Health, Education, Labor and Pensions.  Under the proposed bills, grieving parents would be entitled to up to twelve weeks of unpaid leave to recover from the physical and emotional stress of losing a child.  Congress members were inspired to act after hearing about the personal experiences of grieving parents, some of whom had to return work only days after burying their children.

While supporters of the bills are hopeful a bereavement provision will pass, a number of similar bills have been introduced, and failed, in the past six years. Still, support for parental bereavement leave has been growing in both parties, and it is likely that if the current proposals fail to pass, similar proposals will continue to be introduced in the future.

Grieving parents get little help from state laws, either.  Currently, only two states require bereavement leave for the death of a child or family member: Oregon requires that employers with more than 25 employees provide up to two weeks of unpaid bereavement leave for the death of a family member, and Illinois law requires employers of at least 50 employees to provide up to ten days of unpaid leave for the death of a biological, adopted, foster, or step child, as well certain legal wards.

Although bereavement leave is not required in Massachusetts or other New England States,   a majority of New England employers offer bereavement leave to their employees, according to the Employers Association of the Northeast.  While the amount of leave varies from company to company, the average duration of offered leave is between three and four days.  However, this average reflects general bereavement policies for all types of bereavement; in our experience, employers have been willing to allow extra time in the very unfortunate event that an employee loses a child.

Employers of grieving parents should also be aware that the loss of a child can lead a parent to become depressed, which may also entitle them to protection under the Americans with Disabilities Act of 1990 (“ADA”).  As we wrote last December, guidance issued by the Equal Employment Opportunity Commission makes clear that depression may qualify as a disability with the meaning of the ADA.  Depending on the circumstances, qualified individuals with a handicap may be entitled to accommodations, which could include an extended leave of absence.  When possible, employers should consider providing extra leave for grieving parents.

 

Posted in Americans with Disabilities Act, Benefits, Family and Medical Leave Act, Leave Laws, Legislation, Policies, Reasonable Accommodation | 1 Comment

What Does the Successful Nomination of Neil Gorsuch to the Supreme Court Mean for Employers?

by Amelia J. Holstrom

On April 10, 2017, Judge Neil Gorsuch was sworn in as the newest Associate Justice of the Supreme Court of the United States.  He now fills the seat left by the unexpected death of Justice Antonin Scalia more than a year ago.   It’s been a long and windy road getting here.  After Justice Scalia’s passing in February 2016, President Barrack Obama nominated Chief Judge of the United States Court of Appeals for the D.C. Circuit, Merrick Garland, to succeed Justice Scalia in March 2016.  However, with the Presidential election on the horizon, Senate Republicans refused to consider the nomination and hold a vote.   As a result, Judge Garland’s nomination expired on January 3, 2017.

Just 11 days after the inauguration, President Donald Trump nominated Gorsuch to the Supreme Court.  After days of confirmation hearings, on April 6, 2017, Senate Democrats attempted to derail the nomination using a filibuster.  However, due to a change in the Senate rules often referred to as the “nuclear option,” Senate Republicans were able to break the filibuster with a simple majority of 51, rather than the 60 votes typically needed.  With the filibuster dead, on April 7, the Senate confirmed Gorsuch’s nomination.  So what might the newest Justice mean for employers?

The addition of Judge Gorsuch to the Supreme Court means that it is likely to continue its pro-employer stance.  Notably, during his tenure as a United States Court of Appeals for the Tenth Circuit Judge, Gorsuch sided with employers on a number of issues.  For example, he agreed with and joined the majority of the court in the Tenth Circuit’s decision in Hobby Lobby Stores Inc. v. Sebelius, a decision that held that under the Religious Freedom Restoration Act, employers did not have to provide contraceptive coverage in their health insurance plans for employees as required by the Affordable Care Act if doing so would violate their religious beliefs.  That Tenth Circuit decision was ultimately upheld by the Supreme Court in a 5 -4 decision in Burwell v. Hobby Lobby Stores, Inc. Now-Justice Gorsuch also frequently sided with employers on ERISA issues and cases involving the National Labor Relations Board.

It may not be long before we get to see the true impact.  The Supreme Court will soon address whether companies can require workers to waive their right to pursue class action lawsuits.  Since 2012, the NLRB has taken the position that waiver agreements violate an individual’s right to engage in concerted protected activity under the National Labor Relations Act.  When the issue came before various Circuit Courts of Appeals, different appeals courts came to different conclusions as to whether class action rights could, in fact, be waived.  Justice Gorsuch and the rest of the Court will get to resolve the “circuit split” on this issue.

Each year the Supreme Court decides cases that affect employers nationwide, and Justice Gorsuch may have an important impact on those decisions. On May 10,2017 from 11:30 a.m. to 1:00 p.m. at Lattitude Restaurant, 1338 Memorial Avenue, West Springfield, MA, I will be discussing the potential impact of the new administration, including Justice Gorsuch, on employers in the coming years during the Springfield Regional Chamber’s Lunch & Learn event.  In addition to speaking about Justice Gorsuch, I will also discuss what is happening with the Affordable Care Act and steps Massachusetts may be taking while the issue is sorted out at the federal level; the potential for paid family leave both at the state and federal level; my predictions regarding EEOC and OSHA enforcement trends, including the EEOC’s new EEO-1 requirements; what employers should be watching for related to medical marijuana and what their current legal rights are; and my predictions for labor relations developments under the new National Labor Relations Board.

Advanced reservations for the May 10 Lunch & Learn are $25 for Springfield Regional Chamber members and $35 for general admission. Registration includes lunch.  Reservations may be made online at http://www.myonlinechamber.com.

Posted in Legislation, National Labor Relations Board, Supreme Court | Leave a comment

District Court Weighs In On FMLA Retaliation Standard

by Stefanie M. Renaud

Currently, retaliation is the most commonly-filed complaint with the Equal Employment Opportunity Commission (“EEOC”).  In 2016, retaliation charges accounted for over 42,000 charges, nearly 46% of the annual total.  At the local level, retaliation charges made up 39.2% of the Massachusetts Commission Against Discrimination’s (“MCAD”) filings.  Despite the popularity of retaliation claims, legal questions about proving causation continue to linger.

How does an employee prove a claim of retaliation?

Most anti-discrimination laws, such as the Family Medical Leave Act (“FMLA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), contain rules preventing employers from retaliating against employees for pursuing their rights under those laws  – i.e., for engaging in “protected activity.”  To prove a case of retaliation, an employee must show that s/he:  (1) engaged in protected conduct; (2) suffered an adverse employment action, and; (3) that there was a causal connection between the protected activity and the adverse employment action.

Because the first two elements are relatively straightforward, the main issue in most retaliation cases is whether the protected activity caused the adverse employment action. Courts generally recognize two different methods of proving causation: the “but-for” causation standard and the “mixed motives” causation standard.  The but-for standard requires an employee to show that protected activity was the only reason the employer took the challenged employment action; in other words, that “but for” the protected activity, the employee wouldn’t have been terminated, demoted, denied a promotion, etc. By contrast, in cases where the mixed motives standard (also known as the “motivating factor” or “negative factor” standard) applies, all the employee has to show is that the protected activity was just one of the reasons their employer took the challenged employment action.  If the employee shows that their protected activity played a role – was a motivating factor – in the challenged employment action, then the employer will be liable, unless the employer can prove that it would have made the same decision even if the protected activity had not been considered.

Which causation standard will be used depends on the applicable law and the type of claim alleged.  For example, the United States Supreme Court has ruled that causation in certain Age Discrimination in Employment Act (“ADEA”) claims is analyzed using the mixed motives standard, while causation in retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) is analyzed using the but-for standard.  However, the Supreme Court has yet to address how causation should be analyzed for claims alleging retaliation under the FMLA.

Reasonable minds may differ

When legislators write and pass laws, they often do not write the “nitpicky” details of the laws themselves.  Instead, they delegate the power to create rules and regulations to the federal agency responsible for enforcing the law.  These rules and regulations frequently provide agency interpretation of language that may not be clear from the language of the statute itself.  In the case of the FMLA, it is the U.S. Department of Labor (“DOL”) that has issued regulations implementing the FMLA.  Those regulations prohibit employers from “us[ing] the taking of FMLA leave as a negative factor in employment actions.”  Thus, the DOL applies the mixed motives standard in FMLA retaliation claims.

But that doesn’t resolve the issue.  Although courts generally are required to defer to an agency’s interpretation of the law, they do not have to follow the agency’s interpretation if the court determines the interpretation is unreasonable. And that is exactly what happened in Gourdeau v. City of Newton, a case decided last month by the United States District Court for the District of Massachusetts. The court in Gourdeau looked to legal precedent, the text of the FMLA, and the history and public policy surrounding the FMLA and related anti-discrimination laws, and concluded that the DOL’s regulation is “an impermissible construction of the FMLA.” The court held that the but-for standard should be applied in FMLA retaliation cases, contradicting a 2016 case from the District of Massachusetts that applied the mixed motive standard.

Since district court decisions create non-binding precedent (i.e., judges deciding future cases are not required to rule the same as the earlier decisions), and the First Circuit Court of Appeals has not decided this issue, uncertainty remains as to which causation test will be applied in any given FMLA retaliation case.  However, the Gourdeau decision includes a thorough and well-reasoned analysis supporting the but-for standard which will be useful to employers seeking to apply the standard.  It may also pave the way for some First Circuit precedent, but since the Court of Appeals declined to decide the issue in a case decided just this past December (Chase v. U.S. Postal Service), how soon that will happen remains to be seen.

Posted in Discrimination, Family and Medical Leave Act, Leave Laws, Legislation, Retaliation, Supreme Court, Title VII | Leave a comment

Sometimes It Pays to Have a Little “Heart”

by Stefanie M. Renaud

Last week, a Massachusetts Appeals Court upheld a determination by the Massachusetts Commission Against Discrimination (“MCAD”) that an older custodian, fired after he missed work due to a heart attack, was unlawfully terminated on the basis of his age and  handicap  in violation of Massachusetts General Laws Chapter 151B (“Chapter 151B”).

The custodian, 74 year old William Glynn, had worked for Massasoit Industrial Corporation (“Massasoit”) for twenty years and had a “spotless” personnel record.  Over his twenty-year tenure, Glynn never took a single sick day, until March of 2007, when he left work early because he was not feeling well.  He was subsequently diagnosed with pneumonia and hospitalized for three days.  Less than a week after leaving the hospital, Glynn had a heart attack and was hospitalized for an additional month.  After both incidents, Glynn’s daughter-in-law went to Glynn’s worksite and told a co-worker that he would not be able to come to work because of his health concerns.  The co-worker promised to relay the message to Glynn’s supervisor.

After he was discharged from the hospital the second time, Glynn attempted to return to work, without restrictions, but was told he had been terminated for being a “no call, no show.”  In Glynn’s absence, Massasoit had hired a 68 year old woman to replace him.  Glynn then filed a complaint with the MCAD, alleging that Massasoit had unlawfully terminated him because of his age and handicap.  Massasoit argued that Glynn was not handicapped, because his heart attack was a temporary condition that did not rise to the level of a handicap as that term is defined by law.  In addition, it argued that the fact that it replaced Glynn with a 68 year-old woman demonstrated that it had not discriminated based on age.

The MCAD found in favor of Glynn, holding that Massasoit had illegally terminated Glynn because of both his age and due to the heart attack. In its finding, the  MCAD did not explicitly state that Gylnn’s heart attack constituted a handicap; rather, the MCAD found that Massasoit perceived Glynn to be handicapped and terminated Glynn based on that perceived handicap in violation of Chapter 151B.

The MCAD also rejected the claim that Massasoit could not have discriminated against Glynn based on age because it hired a replacement who was 68 years old.  The decision followed established precedent on the issue of age discrimination, noting that replacing an older worker with someone who is at least five years younger than the terminated employee can be evidence of age discrimination.

Finally, the MCAD concluded that Massasoit’s stated reason for terminating Glynn, his alleged “no call, no show,” was a pretext for discrimination because 1) Glynn’s daughter-in-law had informed Massasoit about Glynn’s absences (although Massasoit claimed it had never been notified of Glynn’s absences, the MCAD found that the employer’s testimony on this point was not credible); 2) Massasoit did not engage in the interactive process with Glynn as required by law, and; 3) Massasoit acted with “haste” to terminate an older, long-term employee with absolutely no performance concerns in his record.  Massasoit appealed the MCAD’s findings to the Massachusetts Appeals Court, but the court affirmed the MCAD’s decision.  Glynn was awarded $55,650 in lost wages and $35,000 in emotional distress damages.

Employers who suspect that one of their employees is absent due to medical reasons, even when a medical condition may be temporary in nature, should take steps to clarify the reasons for the employee’s absence and to engage in the interactive process if appropriate.  Employers may not discipline employees for certain disability-related absences, and may be required to accommodate handicapped individuals, unless such accommodations constitute an undue hardship.  Because the laws surrounding protected leave, the interactive process, and accommodation can be complex, employers should seek the advice of experienced employment counsel when dealing with issues related to absences taken for medical reasons.

Posted in Americans with Disabilities Act, Discrimination, Handicap Discrimination, Reasonable Accommodation | Leave a comment

Missing Comma Costs Maine Dairy Lots of “Moo-la”

by Stefanie M. Renaud

Last week the First Circuit Court of Appeals handed down a 29-page decision best described as a grammar nerd’s dream, and this grammar lesson didn’t come cheap: it may end up costing Oakhurst Dairy of Portland, ME nearly $10 million.  In 2014, Oakhurst’s delivery drivers filed a class action suit, alleging that they were owed nearly four years of overtime wages.

At the center of the case?  A single exemption from the Maine Overtime Act – Section F – which exempts employees engaged in: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.”

Readers who, like the author, are fans of the Oxford, or serial, comma, may have noticed that a potentially crucial comma is missing between “shipment” and “or.”  Without the clarifying Oxford comma, the law is ambiguous, leaving itself open to two interpretations: (1) only employees engaged in “packing for shipment or distribution” are excluded, or (2) employees engaged in “packing for shipment,” and employees engaged in “distribution” are both excluded.  Obviously, Oakhurst argued that the court should follow latter interpretation, while the drivers argued for the former.

After reviewing the text of the law, the legislative history, and the law’s purpose, the court was unable to resolve the ambiguity for either party.  The court then turned to the Overtime Act’s “broad remedial purpose” which directs that the Act should be construed to further its beneficial purpose.  Concluding that this purpose was better served by a narrower reading of the statute, the court held that the employees had won the day: delivery drivers were not exempt from the law’s overtime provisions.  The case was returned to the lower court for further deliberation, and liability has not yet been determined.

Although this case involves the wording of a law, over which employers have no control, employers can take a lesson from this example to understand the importance of ensuring that all employment-related documents are carefully drafted and reviewed by counsel. Although attorney suggestions, particularly with respect to grammar choices, may seem overly picky, such changes are frequently suggested to eliminate ambiguities and ensure that employers’ documents are interpreted the way the employer intended. By drafting documents as clearly as possible, employers can potentially avoid a “comma-tastrophe” of their own making.

Posted in Documentation, Legislation, Policies, Wage/Hour | Leave a comment

The Risks of Disciplining Employees Absent from Work for Political Activism

by Stefanie M. Renaud

Thus far, 2017 has seen a virtually unprecedented level of civic engagement by huge swaths of the American population.  A number of marches and protests have already taken place, including the record-breaking Women’s March on January 21, 2017, and the national “Day without Immigrants” on February 16, 2017.  Yesterday’s national “Day without A Woman,” and the upcoming tech sector walkout planned for “Pi Day” (March 14, 2017) present interesting challenges for employers.  Employers may have questions about how to limit the effect of these future political demonstrations on their workplaces: What if employees calls out?  Can employers refuse employees a day off to “strike” for political purposes?  Can employers discipline and/or fire employees for taking the day off?  If not, can the absence still count as unexcused?  While it is acceptable in some cases to discipline and/or terminate an employee who was absent to engage in political activity, there is one significant caveat that employers must be aware of: the National Labor Relations Act (NLRA). 

First, the First Amendment.

When employers take action in response to something an employee has said, they frequently get backlash that they can’t discipline employee speech, because doing so infringes on employees’ First Amendment rights.  This popular response demonstrates how widespread the misunderstanding of the First Amendment is.  But what is popular is not always right, as is the case here.  The First Amendment applies only to the federal government and other public employers, such as state and local governments and agencies.  It does not limit a private employer’s right to enforce internal policies, or to discipline or terminate an employee for speech that violates such policies or that is otherwise objectively inappropriate or offensive.  Thus, a private employer’s rule prohibiting employees from “talking politics” during working time is not a violation of the First Amendment.

Some Political Activity is Protected

The NLRA applies to both union and non-union employers and gives employees the right to engage in “concerted activities” for purposes of their “mutual aid or protection.”  It is an unfair labor practice for an employer to interfere with employees’ exercise of these rights. Courts, as well as the National Labor Relations Board (NLRB), interpret “concerted protected activity” very broadly, and the U.S. Supreme Court has held that concerted activity to improve working conditions can be protected even if it occurs outside the context of the employment relationship.  Thus, political activity that is related to improving employees’ working conditions will generally be protected.  Similarly, the NLRB has taken the position that employees have a right to engage in political activity when there is a “direct nexus” between the purpose of the political activity and a specific employment-related concern. So a worker striking as part of the “Fight for $15” movement to advocate for a $15 per hour wage is engaging in protected, concerted activity, while an employee refusing to work as part of the national Day Without Immigrants, the goal of which was to protest President Trump’s immigration agenda, may not have been engaged in protected activity, because it’s not clear that this protest had a “direct nexus” to any specific employment-related concern.

The caveat to this rule is that employees who leave work to participate in political activity, even when the activity is related to an employment-related concern, will not be protected if their employer has no control over the issue being protested.  This is because the NLRA protects employers from “economic coercion,” such as strikes, related to issues outside the employer’s control. Moreover, even when employees are engaged in protected activity, they may still be required to follow lawful and neutrally-applied work rules, such as a requirement that employees notify their supervisor if they will be absent from work.  In other words, just because an employee was absent due to protected political activity doesn’t the employee can’t be disciplined for a “no call no show” or for other uniformly-enforced attendance rules.

To Discipline or Not to Discipline

While disciplining employees for something like a no call no show may be an easy call, disciplining for absences is a more difficult question.  First, employers cannot discriminate against employees for engaging in protected activity, so an employee who takes time off from work to engage in protected activity must be treated the same as an employee who takes time off from work for any other reason.  But even when politically-related absences are not protected, there are a number of other considerations employers should take into account before deciding to discipline for those absences.

Employers tempted to fire employees who skipped work to protest should consider the practicality, costs, and implications – including the impact on morale – of firing a potentially large segment of their workforce for engaging in a single day of political protest.  Employers should also consider the potential for negative publicity resulting from mass terminations, and the opportunity for positive publicity if the employer decides to support protesting employees.

In addition, even if employers think certain political activity is unprotected, employees, or the NLRB, may disagree.  Even where a protest may seem more general in nature, employees may be able to establish a protected reason for participation. For example, an employer may believe yesterday’s “Day Without a Woman” was centered around general human rights for women, but an employee may argue that the protest included action taken to improve working conditions by fighting for equal pay or an end to discrimination and harassment in the workplace. There may also be a risk of discrimination claims if discipline is issued exclusively to a group sharing a common protected characteristic, such as sex, gender identity, or gender expression (Day Without a Woman), or national origin, race, or ethnicity (Day Without Immigrants).

Because of the numerous legal risks in terminating and/or issuing discipline to these employees, many employment law experts recommend that employers “eat” these absences and refrain from issuing any form of discipline.  If discipline is imposed, the employer should make clear that the discipline is for violating a uniformly-enforced work rule (such as failing to report an absence, or exceeding an acceptable number of unexcused absences) and not due to the fact they were absent to engage in political activity. Ultimately, how an employer chooses to handle these absences will depend largely on the facts of each individual case and the amount of risk the employer will tolerate.  Before taking action, be sure to discuss your options with an experienced labor attorney in your area.

No Matter What, Be Sure To Do This

All employers should be sure they have policies in place that explain attendance requirements and the procedure for handling unscheduled absences.  Depending on the industry, employers may also wish to have a policy addressing a mass call-out or other collective action, as well as acts of political advocacy.  Because certain political activism may be protected by the NLRA, employers should proceed cautiously when drafting these policies and seek the advice of experienced labor counsel.

Posted in Discrimination, National Labor Relations Board, Unions | Leave a comment

Acting EEOC Chair Offers Glimpse of Agency’s Priorities Under President Trump

by Kimberly A. Klimczuk

Earlier this month, acting EEOC Chair Victoria Lipnic appeared at a panel discussion in Chicago where she spoke about the agency’s expected focus in the upcoming administration and in light of President Trump’s directive to scale back regulations on businesses.  Lipnic opened her remarks by stating that despite the new administration, “the EEOC remains committed to its core values and its core mission and that is not going to change.”  She continued, “Having said that, it is a new administration, and President Trump has made it very clear that he is interested in jobs, jobs jobs.  And for many years, my time in the Commission, I have been saying we are the Equal Employment Opportunity Commission, underscore opportunity…The President has also made it clear that in terms of regulatory policy in particular, and we play a big role in that, that where there are opportunities to refocus things in a a way that will foster economic growth and foster job growth, that is something we should be mindful of.”

The EEOC is made up of five commissioners who are appointed by the president and whose terms end at different times.  Lipnic is a Republican and has served on the Commission since 2010.  There is currently once vacancy on the Commission, and Democrat commissioner (and former EEOC Chair) Jenny Yang will leave the Commission when her term expires on July 1, 2017.  That means that we can expect to have a Republican-majority EEOC as of July 1, 2017.  The EEOC’s General Counsel position is also vacant and awaiting nomination by President Trump.

Lipnic said she didn’t anticipate major changes to the EEOC’s enforcement priorities of protecting vulnerable workers and increasing employee access to the legal system, but she said that age discrimination issues “could get a high profile this year,” which marks the 50th anniversary of the Age Discrimination in Employment Act.  Lipnic also mentioned that she is “very interested in equal pay issues,” though acknowledged that the EEOC historically has not brought many enforcement actions under the Equal Pay Act.

Despite her interest in equal pay, one shift that Lipnic suggested we might see is in the EEOC’s recent revision to the EEO-1 reporting requirements.  The new EEO-1 form, scheduled to go into effect March 1, 2018, would require all private employers that are covered by Title VII and have at least 100 employees to report on their annual EEO-1 forms information regarding the pay and hours worked for all employees.  The EEOC could then use this information to determine whether there are significant disparities in reported pay between men and women, or according to ethnicity, and if so, investigate whether such disparities are the result of unlawful discrimination.

Lipnic noted that she had voted against the EEO-1 revisions and said that the agency should avoid trying to impose “30 year-old solutions to modern-day problems.”  She also noted that the new EEO-1 “fits squarely” into the type of regulatory policy that the President has opposed.  Lipnic stated that the agency should reevaluate the costs and benefits of the pay reporting requirements and that such reevaluation is something she looks forward to discussing with her colleagues in the future.  Given that her current colleagues all voted in favor of the new EEO-1 reporting requirements, my guess is that any reevaluation will take place after July 1 when Republicans regain a majority of the EEOC’s commissioners.  Still, with a March 1, 2018 effective date, there will be plenty of time for the EEOC to reverse course on the new requirements if it chooses to do so.

For a more in-depth analysis of these and other issues, we encourage you to join Skoler Abbott attorneys Amelia Holstrom and Stefanie Renaud at their upcoming breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year.”  The briefing will take place on March 2, 2017 from 8:00 – 10:30 in Springfield, Massachusetts. If you would like more information or would like to register, please call our office for more information or email me.

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The use of this seal confirms that this activity, the March 2, 2017 breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year,” has met HR Certification Institute Institute’s® (HRCI®) criteria for recertification credit pre-approval.

Posted in Age Discirmination, Discrimination, Legislation, Title VII | Leave a comment

NFL Cheerleaders, School Cafeteria Workers, and the New Pay Equity Law

by John S. Gannon

Football fans across New England are basking in the glow of another championship run. The “drive for five” culminated in the hometown team’s improbable come-from-behind victory in Super Bowl LI. Meanwhile, many fans, players and owners—at least outside New England—lament the fact that Tom Brady now has a ring for his thumb.

That’s not the only thing upsetting NFL owners these days. Last week, a former female cheerleader for the San Francisco 49ers under the name “Jane Doe” filed a class action lawsuit against the NFL and 27 of its teams (including our beloved Patriots) claiming female cheerleader wages were unlawfully suppressed by the league and the teams. In the lawsuit, the cheerleaders complain about being paid per game flat fees as low as $90/game, while male NFL mascots, “who dress in oversized costumes and walk around the stadium during games just ten times per year, and with no discernible skill,” were paid between $25,000 and $65,000 per year. The lawsuit claims damages up to $300,000,000.

An oldie but a goodie

The comparison between cheerleader and mascot compensation reminds me of an equal pay case that came out of Massachusetts several years ago. In 1989, Marilyn Jancey, on behalf of a group of female cafeteria workers in the Everett public schools, filed a class action lawsuit claiming they should be paid the same as male custodians in the school. They sued under the Massachusetts Equal Pay Act, which prohibits disparity in pay between employees of the opposite sex for comparable work. The cafeteria workers claimed their work was comparable to the skill, responsibility and importance involved in custodial work. The lower court agreed and issued a judgment in favor the female cafeteria workers. However, the Massachusetts Supreme Judicial Court—the highest court in the state—reversed the decision saying that in order for work to be “comparable,” the work performed cannot differ in “substantive content.” According to the SJC, the lower court should have looked not just at whether the type of work performed was comparable, but whether the content of the work was comparable. Because the jobs were not comparable in content (i.e., custodial work vs. cafeteria work), the SJC held that equal pay for the positions was not required. Since the Jancey decision, employers in Massachusetts have successfully defended equal pay lawsuits by showing the jobs at issue did not have similar job duties – i.e., that the two jobs were categorically separate. That is, until next year.

New pay equity obligations

Back in August 2016, the legislature here in the Commonwealth passed sweeping pay equity legislation. The law broadened the scope of the Massachusetts Equal Pay Act, making it clear that jobs need not have common characteristics or similar duties to invoke equal pay obligations. Instead, absent certain exceptions (discussed in a prior post), the real question is whether the jobs require substantially similar skill, effort and responsibility and are performed under similar working conditions. Translation: Employers will soon have difficulty winning pay equity lawsuits if their only argument is that the jobs in question have dissimilar duties. We anticipate this will clear the way for more successful equal pay lawsuits in Massachusetts. One state representative even declared: “Marilyn Jancey and lunch ladies from Everett have been waiting [for this law] since 1989.”

What do we do?

Changes to the state pay equity law do not take effect until July 1, 2018. Still, employers should start looking at their current pay structures now, with an eye toward analyzing differences in compensation for positions that could soon be labeled “comparable.” My colleagues Amelia Holstrom and Stefanie Renaud will be presenting a firm breakfast briefing on March 2, 2017 from 8:00 – 10:30 in Springfield, Massachusetts titled “What Will 2017 Bring?: Employment Law in the New Year.” They will be touching on pay equity, along with several other important topics. If you would like more information or would like to register, please call our office for more information or email me. In addition, Kimberly Klimczuk of our firm will be presenting a Pay Equity Workshop at this year’s Fair Housing and Civil Rights Conference, which will be held in Springfield on April 6-7, 2017.

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The use of this seal confirms that this activity, the March 2, 2017 breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year,” has met HR Certification Institute Institute’s® (HRCI®) criteria for recertification credit pre-approval.

Posted in Legislation, Massachusetts Wage Act, Wage/Hour | Leave a comment

Is Your Company Using the New I-9?

by Marylou V. Fabbo

Look for a date in the lower left hand corner of your I-9 Form.  If it is not dated November 14, 2016, then you are not using the correct form.  As of January 22, 2017, employers have been required to use the November 14, 2016 version of Form I-9 Employment Eligibility Verification to verify the identity and work eligibility of every new employee hired after November 6, 1986.  This new form also must be used if you are required to re-verify expiring employment authorizations of current employees.  Prior versions of the form are no longer valid, and employers who are not using the form dated November 14, 2016, may be subject to penalties under the Immigration and Nationality Act.

Posted in Employment Eligibility Verification | Leave a comment