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

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.

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