Will Private Employees Have the Option of Comp Time?

by Erica E. Flores

In 1938, the Fair Labor Standards Act (“FLSA”) implemented basic wage and hour protections in the form of a 40-hour standard workweek and employee entitlement to one-and-a-half times their regular rate for hours worked beyond that.  What the FLSA does not touch, however, is a subject that both employers and employees care about almost as much as compensation: paid time off.

Introduced by Representative Martha Roby (R-Ala.), the Working Families Flexibility Act of 2017 (H.R. 1180), looks to fill that hole by giving employers and employees the option to agree to substitute paid time off for overtime wages.  The bill was passed by the House on May 2, 2017, by a recorded vote of 229 to 197, and moved on to the Senate for further debate.  Whether it will survive the Senate remains to be seen, but President Trump has pledged to sign it if it makes it to his desk.

So how would the Working Families Flexibility Act affect employers?  As its name implies, the legislation would let employees choose to spend more time with their families by electing to receive compensatory time off as payment for overtime work in lieu of traditional overtime compensation.  Like the overtime pay Americans have known for nearly 80 years, this compensatory time off would accrue at the same time-and-a-half rate up to a maximum of 160 hours.  Employees would then have the ability to use that time for any reason – e.g., to care for a sick child, take a longer vacation, or enjoy one more family beach day before school starts – and the employer would be required to pay out any unused accrued time at the end of each year.  The employer would also have the option of paying out any unused accrued time in excess of 80 hours after providing at least 30 days’ notice, while employees would have the ability to request a payout of their accrued comp time within 30 days.  To implement this arrangement, the employee and employer would have to enter into a written agreement before the employee performed the overtime work. This agreement, however, could be withdrawn by the employee “at any time” and by the employer with 30 days’ notice.  Furthermore, the bill would provide employees with protection from intimidation, threats and coercion by employers looking to interfere with their rights to request or not request comp time, or to require employees to use it.  Any employer in violation of these protections would be liable for double damages.

Of course, these very basic provisions would likely be developed further through regulations issued by the Department of Labor.  But even as presently written, they have already been the subject of vigorous disagreement.  Representatives against the bill argue that it would take away the longstanding security of receiving fair pay for overtime work by ultimately providing less pay to those who choose compensatory time. They also argue that the bill would in fact result in less family time by leading to less predictable work schedules and an overall increase in worked overtime hours.  Finally, opponents argue that employers would ultimately reap the greater benefit because they would have the discretion to decide when earned compensatory time could be used, a power that could be used to effectively cheat employees out of their comp time altogether.  For these reasons, opponents are calling attention to other options they claim would provide a greater benefit to employees, such as increasing the federal minimum wage and allowing for more control over schedules.  Proponents of the legislation respond by pointing out that government employees have had the benefit of this option since 1985.

So would H.R. 1180 be a good thing or a bad thing for Massachusetts employers?  On the one hand, employers who decide to offer the option of compensatory time would be opening themselves up to some pretty big unknowns – e.g., how many employees will opt for earned comp time, when and how will they try to use their time, will they seek payment of wages instead, etc. – as well as new grounds for interference and retaliation claims that carry mandatory double damages.  On the other hand, the bill does not require employers to do anything different at all – they would be free to continue to pay overtime compensation as they have been doing and remain in compliance with the requirements of the FLSA.  Additionally, the flexibility inherent in the legislation – including the ability for employers to prevent the use of comp time when it would be “unduly disruptive” to the employer’s operations – may make it an appealing option for employers whose workforces work significant overtime.  And if an employer tried a comp time system and decided it was a bad idea, they would be free to rescind the system with just 30 days’ notice.

It is impossible to know whether H.R. 1180 will pass the Senate and land on President Trump’s desk, or what the DOL’s regulations might look like, but in the meantime, employers may wish to start thinking about whether an earned compensatory time option would be right for their business.

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

DOL Rolls Back Obama-Era Joint Employer and Independent Contractor Guidance

by Amelia J. Holstrom

Earlier this month, the United States Department of Labor withdrew its 2015 and 2016 guidance on joint employment and independent contractors.   The Obama-era joint employment guidance had expanded the definition of “joint employment” to include situations where multiple employers had the mere authority to control the employees’ terms and conditions of employment, as opposed to the previous interpretation that only employers that actually exerted direct control over terms and conditions of employment would be considered joint employers.  The independent contractor guidance, on the other hand, had narrowed the definition of independent contractor under federal law, making it more difficult to classify a worker as an independent contractor.   The DOL has removed both guidance documents from its website and will no longer be adhering to the guidance.

Although employers nationwide praised the DOL’s latest move, it is crucial for employers in Massachusetts to remember that Massachusetts has one of the most – if not the most – restrictive independent contractor statutes in the United States, and that the DOL’s new enforcement priorities do not change their obligation to comply with that law.

The Massachusetts independent contractor statute was intended to drastically reduce the number of individuals that can be properly classified as independent contractors by creating a framework by which the vast majority of workers must be treated as employees and therefore are entitled to the benefits and rights of employment.  Consistent with this purpose, the statute contains a three-prong test to establish that someone is an independent contractor: (1) the individual is free from control and direction with the performance of the service, both under his contract and in fact; (2) the service is performed outside the usual course of business of the employer; and (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.  If any of the above statements are not true regarding an individual’s work, the worker must be classified as an employee.  Under the law, it is the employer’s burden to prove that all three prongs of the independent contractor test are met.

Despite the law’s very broad language, some industries have had success in getting Massachusetts courts to carve out narrow exceptions to the independent contractor statute.  For example, the Supreme Judicial Court has held that real estate agents and Boston taxi cab drivers can be classified as independent contractors even though such employees seem never to meet prong 2 of the independent contractor test (because Massachusetts law requires real estate agents to work for a real estate brokerage, and it requires cab drivers to belong to radio associations that provide dispatch services).

In the case of real estate agents, the SJC reasoned that because the laws regulating real estate agents explicitly state that real estate agents may work as independent contractors, that language overrides the language of the independent contractor law.  In the case of cab drivers, the SJC found that the dispatch services provided by radio associations, which don’t actually own or operate any taxis themselves, are distinct from the transportation services provided by the cab drivers.

In addition, as discussed previously, employers covered by the Federal Aviation Authorization Act of 1994 get a small break from the statute.  Because the court has found prong 2 of the independent contractor statute to be preempted by the FAAA, motor carrier companies only have to meet the criteria set out in prongs 1 and 3 to legally use independent contractors rather than hire employees.

These exceptions are very limited, however, and employers need to be careful when classifying individuals as independent contractors.  One misstep can lead to years of litigation over unpaid wages, which will be costly in the long run.

Posted in Independent Contractors, Legislation, Wage/Hour | Leave a comment

Conflict Resolution Policies Help Employers Remain Union Free

by Marylou V. Fabbo

No workplace is free of conflict and employee disagreement.  Disputes arise in all workplaces and can be related to just about every imaginable issue, including dissatisfaction with break times, seemingly unjust disciplinary actions, lunches stolen from the lunch room refrigerator, and co-worker hygiene issues.  Because of the frequency with which these sorts of issues arise, employers should have procedures in place to address employee concerns.  Employees who feel that their issues are not heard or resolved become dissatisfied with their work environments and their employers. Perception of employer unfairness is the primary reason employees organize, as many employees believe that a union will protect them from unilateral management whims.  Having a conflict resolution process in place that is well-communicated to employees and consistently applied lets employees know that their issues will be addressed and taken seriously, and it makes them less likely to seek redress through unionization efforts.

Developing a Means of Addressing Employee Issues

Conflict resolution, also known as dispute resolution, can take many forms.  Conflict resolution can be an informal meeting between a supervisor and an employee to resolve a work-related issue or the use of an “Open Door” policy.   However, not all dissatisfaction is so easily resolved.  If an initial meeting with a supervisor does not resolve an issue, the employee needs to know what to do next.  If an organization has a policy in place for resolving conflicts quickly and at early stages, employees tend to view their employers as fair.

The type of dispute resolution process an employer puts in place will depend on the size of the organization, the makeup of its workforce, its culture, and the resources available to address employee issues.  Some employers may institute detailed procedures involving many people with several levels of appeal, while others may not be able to provide their employees with as many opportunities for review of a determination.  Regardless of the process chosen, an employer should draft a conflict resolution policy that will provide employees with a fair opportunity to have their concerns addressed and one which the company will be able to adhere to.

Generally, there are three steps in a good conflict resolution procedure.  The initial step is discussion with the employee’s supervisor, unless the problem is the employee’s supervisor, in which case an alternate starting contact, such as the next-level supervisor, should be identified.  Second, if the initial discussion does not resolve the problem to the employee’s satisfaction, an employee should be directed to submit a complaint to the next-level supervisor, department head, or Human Resources.   A written complaint is recommended and should include a summary of the issue, the date the issue occurred, the first-level reviewer’s response, and the desired outcome.  Often organizations prepare standard forms for employees to complete to insure that all relevant information is provided.    If the response remains unsatisfactory to the employee, the third step in the resolution procedure should include a final appeal to a specific group of people or the highest-level officer within the company or a peer review panel.

The resolution procedure should include a realistic time frame by which the employer will respond to complaints at each level of the process, keeping in mind that the employer may need to gather additional information and/or conduct witness interviews before it can provide a response.  The procedure should also include a deadline for employees to appeal to each subsequent step in the process (such as 5 working days after the employer’s response to the prior-level complaint).

Consider a Dispute Resolution Committee

A dispute resolution committee that is comprised of management and other employees (also known as a peer review panel) is a good option for employers to use as the final level of appeal.  The committee could also have responsibility for receiving employee concerns and problems or act as a mediating body.  Employers who are considering using dispute resolution committees for such purposes should have written rules and guidelines that define the types of complaints it will consider, its authority, and set forth how members for the committee will be chosen.

Whatever the mechanism, an internal dispute resolution processes can provide the parties directly involved with greater participation in reaching a solution in a less formal environment than a courtroom and without union intervention.

Posted in Dispute Resolution, Policies, Unions | Leave a comment

Ready, Set, Go…Write or Update Those Job Descriptions Now!

by Amelia J. Holstrom

In August 2016, Governor Charlie Baker signed a new law strengthening pay equity in the Commonwealth.  Under the new law, which goes into effect on July 1, 2018, pay differences between persons performing “comparable work” will be acceptable only if based upon one of the following factors: (1) a seniority system; (2) a merit system; (3) a per unit or sales compensation scheme; (4) geographic location of the job; (5) education, training and experience; or (6) the amount of travel required.

Notably, the new law defines “comparable work” as work that requires “substantially similar skill, effort and responsibility” and is performed under “similar working conditions.” This “substantially similar” language is broader than the “substantially equal” test used under federal law and makes clear that jobs do not have to be in the same category in order to be comparable.  This will likely lead to more favorable results for plaintiffs who file claims under the new state law.

The new state statute provides employers with an affirmative defense to a pay discrimination claim.  Employers who complete a “good faith” self-evaluation of their pay practices and demonstrate “reasonable progress” toward eliminating any wage differentials may avoid some liability under the law.  As of right now, the Attorney General has not issued any guidance and the statute does not make clear what the terms “good faith” and “reasonable progress” mean.  What is clear is that before the law goes into effect, employers need to conduct an audit of their pay practices to identify and remedy any pay disparities before the law goes into effect.

Although there are several parts to an audit, a crucial piece will be identifying which jobs entail “comparable work” under the statute.  It will not be enough for employers to rely merely on what they believe employees do in each position or what they are told they do in each position. Determining which positions are comparable will require a careful review of the positions as a whole and all of their current requirements, including skills, responsibilities, and working conditions.  It is also imperative that what the jobs require be in writing and updated.  That’s where your job descriptions come in.

Job descriptions are important for a number of reasons. First, a job description is useful for clearly communicating the requirements and expectations for a position to the employee.  Second, well-written and frequently-updated job descriptions help employers defend against a variety of legal claims that may be brought by employees.  Third, job descriptions can assist employers and physicians in determining whether employees are able to perform the essential functions of their job with or without a reasonable accommodation.  In addition to these and other reasons, job descriptions will be crucial for employers seeking to demonstrate that certain positions are or aren’t comparable to one another for pay equity purposes.

Employers should regularly review job descriptions to ensure that they are 100% accurate.  With the pay equity law’s effective date quickly approaching, employers need to start audits now, and before they do so, they should update their job descriptions to accurately reflect what each position requires.  Without written job descriptions, an employer will have a more difficult time defending a lawsuit brought by a plaintiff who alleges that his or her job actually required more or less than what the employer says it did, which might affect which jobs his or her job needs to be compared to when determining issues of pay equity.

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

I-9 Compliance: Will You Recognize Redesigned Green Card and Employment Authorization Documents?

by Marylou V. Fabbo

As discussed in our blog earlier this year, since January 22, 2017, employers have been required to use the new Form I-9 to verify the identity and employment authorization of individuals hired for U.S. employment.  Employers should be aware of additional changes that may impact the verification process.  Effective May 1, 2017, the U.S. Citizenship and Immigration Services (USCIS) as part of the Next Generation Secure Identification Document Project will be issuing redesigned Permanent Resident Cards, commonly referred to as “Green Cards,” and Employment Authorization Documents (EADs) aimed at reducing the risk of tampering.

Both Green Cards and EADs are documents that establish both identity and employment authorization, and employers need to recognize that the look of these documents is changing.  The new Green Cards and EADs will display the individual’s picture on both sides.  Both will have a unique graphic image and color palate.  Green Cards will have an image of the Statute of Liberty and a predominately green palette, and EAD cards will have an image of a bald eagle and a predominately red palette.  They also will have embedded holographic images, and will no longer display the individual’s signature or have an optical stripe on the back.  Some Green Cards and EADs issued after May 1, 2017 may still be in the old format as the USCIS will exhaust its stock before beginning to use the new documents.

Posted in Employment Eligibility Verification | Leave a comment

Are You Ready for the Pregnant Workers Fairness Act?

by Marylou V. Fabbo

Last week, the Massachusetts House voted 149-0 in favor of H.3680, An Act establishing the Massachusetts Pregnant Workers Fairness Act.  It is now headed for the Senate.  If it’s passed, employers that are not already doing so would have to make workplace accommodations for pregnant employees.  Accommodations could include more frequent or longer breaks, modified work schedules, and/or temporary transfers to less strenuous positions.  As when accommodating a disability, employers who demonstrate that the proposed accommodation for the pregnant worker would create an undue hardship, which is defined as something “requiring significant difficulty or expense,” would not have to provide the accommodation.  Although the Act still needs to clear the Senate, it has wide support from both employee and employer groups, including the Associated Industries of Massachusetts, and is expected to pass.  As it currently stands, the Act would become effective January 1, 2018.

Posted in Legislation, Reasonable Accommodation | Leave a comment

Are Payment Contingencies in Commission Agreements Worth the Paper They’re Written On?

by Stefanie M. Renaud

Late last year, we discussed the Massachusetts Appeals’ Court decision in Perry v. Hampden Engineering Corporation.  In that decision, the court held that commissions were “due and payable” under the Massachusetts Wage Act at the time an employee resigns or is terminated, even if they are not yet due and payable under the terms of the company’s commission agreement or plan.  In its holding, the court reasoned that the Wage Act mandated when commissions are due and payable and that employers could not exempt themselves from that time frame by way of their commissions agreements.  Because the Wage Act states that employees who separate employment shall be paid all wages, and the Wage Act applies to commissions that are “definitely determined” and “due and payable,” the court held that employers must pay separating employees all commissions that are “definitely determined” as of the time of separation.

Last month, a federal trial court in Massachusetts also held that a former employee was entitled to unpaid commissions under the Wage Act, despite an explicit statement in the employer’s plan that employees who voluntarily resigned were ineligible for incentive payments.  Although this court did not rely on the holding in Perry, when taken together, these cases suggest a judicial trend towards invalidating payment contingencies that commonly appear in commission agreements and bonus plans.

In Israel v. Voya Institutional Plan Services, LLC, Joel Israel sued his former employer, Voya Institutional Plan Services (“Voya”), for approximately $32,000 in unpaid “bonuses” under Voya’s variable compensation plan (“Plan”).  The Plan consisted of three types of incentive compensation: an individual component, a forfeiture component, and a discretionary component that was not at issue.  The individual bonus value was a percentage of revenue generated by the employee when they convinced clients to allow Voya to manage their money for at least three months.  The forfeiture component value was a per-capita portion of funds forfeited by other voluntarily-separated employees, so that remaining employees who assumed their workload could receive a portion of the departing employee’s forfeited incentive compensation.  The Plan clearly stated that employees who voluntarily resigned were not eligible for bonuses.

After he requested a job transfer in 2014, Voya reviewed Israel’s employment records and discovered falsehoods in his application materials.  Voya told Israel that he could either resign voluntarily or be terminated, and Israel decided to resign voluntarily.  Voya therefore refused to pay Israel the bonus he earned during the final three months of his employment.  Israel subsequently sued Voya, alleging that 1) he had actually been terminated and was therefore eligible for bonuses under the Plan, or 2) the bonuses were commissions he was entitled to by virtue of the Massachusetts Wage Act.  While the court refused to hold in his favor on the first theory, it concluded that the bonuses were commissions under the Wage Act, and therefore, were due and payable to Israel once they were definitely determined, regardless of the Plan’s terms.

Voya argued that the compensation was a bonus, and therefore, outside of the purview of the Wage Act, because it was based on a continuing stream of revenue rather than a discrete sale, and that the Plan’s unmet payment contingency – that Israel remain employed until the date of payment – rendered the bonus not due and payable.  The court rejected these arguments, finding that the compensation was a commission because it was based on revenue generated by an individual employee rather than overall business profits, there was no legal basis for treating stream-of-revenue compensation differently than revenue from discrete sales, and because the bonuses were paid routinely, like commissions, rather than infrequently, like bonuses.  The court then concluded that the commissions were definitely determined, because the parties had agreed to a commission amount, and that they had been due and payable at the time of Israel’s separation.  The commissions were due and payable upon separation even though Israel had not met the Plan’s terms, because the Wage Act protects against “unreasonable detention” of employee wages, including commissions, and the court was unwilling to sanction a practice it felt allowed employers to use arbitrary contingencies to unreasonably delay such payments.

This case is a good reminder that compensation that looks like a commission, sounds like a commission, and acts like a commission, will be treated as a commission regardless of what an employer calls it.  Whether labeled a bonus, a commission, or anything else, compensation programs that operate like commission structures (i.e., variable compensation regularly paid and based on individual revenue or sales) will be considered commissions for the purposes of the Massachusetts Wage Act.  In addition, this case suggests that the Perry decision may not be an outlier, and courts may continue this trend of holding that employers cannot avoid application of the Wage Act – which imposes treble damages and attorney’s fees on losing employers – through formerly acceptable contingencies in the employer’s internal plans and policies.

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

Updated CORI Regulations Require Employer Action

by Stefanie M. Renaud

As part of Governor Baker’s continued push for CORI reform, the Secretary of State recently issued a number of revised regulations governing the CORI background check process. These regulations, propagated by the Massachusetts Department of Criminal Justice Information Services (“DCJIS”), require that employers revisit their CORI policies, forms, and procedures to ensure continued compliance.  The following regulatory changes are of particular relevance for employers:

Recordkeeping Provisions:

  • Employers may now store CORI reports and acknowledgement forms on the cloud. Employers must have a written agreement with the cloud storage provider, and must provide such agreement to DCJIS upon request.  The cloud storage must be password-protected and encrypted.
  • Employers will be required to maintain a “need-to-know” list of employees authorized to access CORI reports. Employers must update the list “periodically,” but not less than every six months, and must make the list available to DCJIS upon request.  Employers may also disseminate the list to the CORI subject upon request.
  • Employers are now required to destroy CORI acknowledgment forms as well as the CORI reports themselves. Specific guidelines for the destruction of CORI documents are addressed in the revised regulations.

Expanded Employee Protections:

  • The definition of employee has been expanded to include subcontractors, contractors, and vendors. This very expansive definition of employee places these regulations at odds with the definitions of employee found in other state and federal laws.
  • CORI will no longer include information about convictions before age 18, unless the person was adjudicated as an adult.
  • Before an employer may ask an employee questions about – or make an employment decision based upon – information contained in the CORI, the employer must still provide the employee with a copy of their CORI report, but it must now also disclose the source of the problematic criminal history information.

Procedural Provisions:

  • The CORI regulations continue to require employers to verify the identity of the subject of the background check. However, the regulations now require employers to verify using photo identification whenever possible.  Tribal documents and “other forms of documentation as determined by the DCJIS” are now acceptable forms of identification, and, where proper photo identification is lacking, employers may now verify the subject’s identity using a birth certificate or social security card.
  • When renewing the annual CORI acknowledgement form, employers must re-verify the subject’s identity, unless the information on the new acknowledgement form “exactly matches” the information from the previous form. Depending on how much risk they are willing to tolerate, employers may choose to simply re-verify all identifications annually.
  • Employers may now run a subsequent background check, prior to the expiration of the CORI acknowledgement form, without providing 72 hours of advance notice to the employee. However, in order to do this, employers must notify the employee in the initial acknowledgement form, at the time of signing, that a subsequent check may be run prior to the form’s one-year expiration.
  • Employers may now collect CORI acknowledgement forms electronically, and as early as the application process. Note that employers collecting acknowledgment forms electronically are subject to the same record-keeping requirements as employers who obtain hard-copy forms.

Miscellaneous provisions:

  • The DCJIS removed its own requirement to provide a model CORI policy on its website, while simultaneously codifying the requirement that it maintain model acknowledgement forms on its website. The purpose of these two actions is unclear, but the model CORI policy is still currently available here.
  • Employers utilizing Consumer Reporting Agencies (”CRA”) will face additional registration hurdles before the CRA can run CORI on the employer’s behalf. Additionally, employers are now required to furnish a statement to the CRA if the position for which the subject is being considered has a salary of over $75,000.
  • Going forward, all users must sign a yet-to-be-released iCORI Agency Agreement to access to the online iCORI system. While the full contents of the Agreement are not yet known, at a minimum it will require employers and their agents to: comply with CORI laws and regulations; maintain an up to date “need-to-know” list (as described above); provide all staff that request, review, or receive CORI reports with CORI training materials; request only the level of CORI access authorized by law or the DCJIS; and to acknowledge that both the entity and individual employees may be liable for violations of CORI laws or regulations.

In light of these changes, employers should revisit their CORI policies, forms, and procedures to ensure they are compliant with the new regulatory scheme.

Posted in Background Checks, Data Security, Documentation, Legislation, Policies | Leave a comment

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.


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

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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