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.


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.


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

Can Employers Ever Treat Employee Absences the “Rose” Way?

by Stefanie M. Renaud

Last week we discussed the fine imposed by the New York Knicks on player Derrick Rose for his “no call no show” for a basketball game.  Employers might wonder if they, like the Knicks, could “fine” their employees for absenteeism.  Generally, employers may “dock” the pay of non-exempt employees in the form of simply not paying employees for the time they didn’t work.  In other words, if an employee makes $16.00 per hour and is 15 minutes (.25 of an hour) late, the employer could deduct a maximum of $4.00 from what the employee otherwise would have earned had the employee arrived to work on time.

But what about a policy of actually fining late or absent employees – that is, in addition to losing wages for missed time, the employee must also pay a “fine” of $20.00?  Would that be permissible in Massachusetts?  In Camara v. Attorney Gen., 458 Mass. 756 (2011), the Massachusetts Supreme Judicial Court held that the Massachusetts Wage Act prohibits deductions from employee wages, except where the deduction constitutes a valid “set off” under M.G.L. c. 149, Section 150.  According to the Court in Camara, in order for a deduction to be considered a valid set-off, there must be: (1) a clear and established debt to the employer by the employee; (2) the amount of the debt or obligation must be clearly established, and; (3) the determination as to the existence and amount of the debt must be fairly established.  Accordingly, the Court struck down the employer’s policy, which permitted the employer to deduct funds from employee wages for the cost of damage to company vehicles.

Under the Camara holding, absenteeism “fines” deducted from an employee’s paycheck would not be a valid set-off under the statute.  However, Camara applies only to deductions taken directly from an employee’s pay.  What would happen if an employer did not deduct the fine from the employee’s paycheck but instead required the employee to pay the fine in cash to the employer?  Although there is no legal precedent addressing this situation, we don’t recommend implementing such a policy.  A better – and less risky – approach is to address attendance issues with a clear and uniformly-enforced attendance policy.

Before considering discipline for employee absences, a crucial first step for employers is to carefully evaluate the circumstances of the absence and ensure that the employee’s absence is not protected from discipline by one of the leave laws discussed in our last post, or any other law that provides protected leave.  The laws that entitle employees to leave also prohibit retaliation against employees for taking the leave.  Subjecting an employee to discipline for taking protected leave constitutes unlawful retaliation.  Even if one of the leave laws doesn’t apply, employers must consider their obligations under the Americans with Disabilities Act (ADA) and/or Massachusetts’ Fair Employment Practices Act, both of which require employees to provide reasonable accommodations to disabled employees.  If an employee needs time off due to a disability, an employer must provide the leave as a reasonable accommodation, as long as it does not create an undue hardship for the employer.

Still, that doesn’t mean that employees taking leave for a protected reason can just come and go as they please.  Even when employees are entitled to leave by law, employers generally may require employees to follow their normal call-in procedures to report absences.  Although employers need to make exceptions in emergency situations, in most cases, employers may discipline employees for a “no call no show.”

However, given the challenges of disciplining for attendance issues in the context of protected leave, the best way for employers to protect themselves is to have a written attendance policy, provided to all employees, that clearly lays out the employer’s attendance expectations and the call-in procedure for employee absences, including: whom employees should contact; which types of contact are acceptable (i.e., is it acceptable for employees to leave a voicemail, e-mail or text message, or are employees required to speak to an actual person?); when employees should notify their supervisors, and how often employees must call in to provide updates.  Any policy regarding updates should contain special provisions for employees on protected leave, as “checking up” on such employees, or requiring too frequent updates from them, could expose the employer to additional legal claims.

The attendance policy should also clearly describe the potential consequences of infractions, including how many absences, and within what time period, will result in disciplinary action.  For example, your policy may require termination for the third “no call no show,” or issue a “point” for every day the employee is more than 15 minutes late. Once employers have a policy in place, they must enforce it consistently and fairly.  This may require training or re-training managers to recognize potential problems and to respond to absences appropriately and equitably.  And of course, employers should be sure to document all absences, doctor’s notes, and any discipline issued under the attendance policy.

Posted in Americans with Disabilities Act, Documentation, Family and Medical Leave Act, Leave Laws, Policies, Reasonable Accommodation | Leave a comment

Derrick Rose Fined $200,000 for “No-Call No-Show”

by Stefanie M. Renaud

On January 9, 2010, the New York Knicks lost two important things: the night’s game and their starting point guard, Derrick Rose.  Rose was what we in the employment law world call a “no-call no-show” for the game against the Pelicans, meaning that he didn’t show up, and he didn’t call to let anyone know that he wouldn’t be there, or why.  Upon his January 10 return, Rose claimed he missed the game due to “family reasons.”  Rose said that he had felt “emotionally” that he “had to be with [his] family,” at that time, specifically his mother Brenda.

According to reports, Rose apologized to his coaches, teammates, and the team’s ownership for his absence.  When asked, coach Jeff Hornacek lamented that “if he would’ve just called us and let us know, [it would have been] fine.”  Ultimately, the Knicks announced that they were fining Rose around $200,000 for the missed game.

Most employers don’t have the option of imposing hefty fines on employees who miss work.  In fact, doing so would be unlawful in many cases.  So what can employers do when faced with employee absences?  Let’s start with a review of the various leave laws that apply to Massachusetts employers.

Massachusetts requires a range of leave options for employees dealing with “family issues,” and these options differ depending on the size of the employer and what particular issues are involved. Each law allows leave for its own specific purposes and has different legal requirements with regards to notice, reinstatement, and other job protections.  Let’s take a quick look at each of these types of leave:

Earned Sick Leave (applies to all employers, regardless of size)

The Massachusetts Earned Sick Leave (“ESL”) law applies to any employer of Massachusetts employees (except the U.S. government and municipalities that have not voted to be subject to the law), regardless of where the employer is headquartered. Employees are entitled to accrue 1 hour of sick leave for every 30 hours worked.  Employers must allow employees to carry forward up to 40 hours of accrued time, but employees may not use more than 40 hours of sick leave per year.

Employees may use sick time when the employee or the employee’s child, spouse, parent, or parent-in-law is sick, injured, has a medical appointment, or has to address the effects of domestic violence. Employers with 11 or more employees must provide paid sick time. Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid.

Employers may require employees to give notice before using sick time, except in an emergency.  Employers may also require employees to fill out a form stating that they are using or have used sick time for a sick leave-related purpose.  Employers may not, however, require a doctor’s note or other documentation except in limited circumstances, such as when an employee misses more than three consecutive workdays. Employers may never require information about the nature of the illness or the details of domestic violence.

Parental Leave (applies to employers with at least 6 employees)

The Massachusetts Parental Leave Act (“PLA”) entitles employees of either gender to eight weeks of unpaid parental leave.  Under the law, parents are eligible for eight weeks of leave, per child, for the purpose of giving birth, or for the placement of a child under the age of 18 (or under the age of 23 if the child is mentally or physically disabled) for adoption.  If both parents work for the same employer, they are only entitled to 8 weeks of leave, total, for the birth or adoption of the same child.  Employers are not required to pay employees during parental leave.

Employees seeking to use parental leave must provide at least two weeks’ notice of the anticipated date of departure and the employee’s intention to return, or, if two weeks’ notice is not possible, as much notice as is practicable.

Family Medical Leave (50+ employees)

The federal Family Medical Leave Act (“FMLA “) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: (1) the birth of a child and to care for the newborn child within one year of birth; (2) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; (3) to care for the employee’s spouse, child, or parent who has a serious health condition; (4) a serious health condition that makes the employee unable to perform the essential functions of his or her job; or (5) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.” Additionally, employees may be entitled to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (this is known as military caregiver leave).

If possible, the employee must give the employer at least 30 days advance notice of the need to take FMLA leave.  When the need for leave is unexpected, the employee must provide notice to the employer as soon as possible. In the case of the employee’s serious health condition, the serious health condition of a family member, military caregiver leave, or qualifying exigency leave, employers may request documentation demonstrating the employee’s need for leave.

Small Necessities Leave (50+ Employees)

The Massachusetts Small Necessities Leave Act (“SNLA”) provides eligible employees with 24 hours of unpaid leave, per year, for the following reasons: (1) To participate in school activities directly related to the educational advancement of the employee’s child; (2) To accompanying the employee’s child to routine health care appointments; (3) To accompany an elderly relative (age 60+) to routine health care appointments; or (4) To accompany an elderly relative to an appointment for professional services related to the relative’s care, such as interviewing at a nursing home or group care facility.

The 24 hours of SNLA leave are in addition to the 12 weeks of FMLA and may be taken intermittently or all at once.  Employees may elect to use earned vacation or personal leave to receive pay during the otherwise unpaid SNLA leave period.  If the need for the leave is foreseeable, the employee must give at least three days’ notice; otherwise, the employee must give notice as soon as practicable.  Employers may require documentation of an employee’s need for SNLA leave.

Domestic Violence Leave (50+ Employees)

The Massachusetts Domestic Violence Leave Act (“DVLA”) provides covered employees with up to 15 days of leave in any 12-month period to deal with certain domestic-violence related issues, specifically to: (1) look for or receive medical care, counseling, victim services or legal assistance; (2) look for and move into new housing; (3) get a protective order from court or otherwise appear before a court or grand jury; (4) meet with a district attorney, the police or other law enforcement official; (5) attend child custody proceedings; or (6) deal with other issues directly related to the abusive behavior against the employee or a member of the employee’s family. The employer is not required to pay employees on DVLA leave.

Employees must provide appropriate advance notice of the need for leave, unless there is a threat of imminent danger. In such emergency situations, employees must inform their employer within three workdays of their absence that the leave was related to domestic abuse.  Employers may request documentation supporting the employee’s need for leave, and employees must provide the documentation within 30 days of taking the leave.

HR professionals know that managing employee absences under all of these laws can be very challenging.  Next week, we will discuss some of these challenges and how best to manage them.

Posted in Family and Medical Leave Act, Leave Laws | Leave a comment

Are You at Risk of a Data Breach Lawsuit?

by John S. Gannon

Data security concerns are at an all-time high.  Just a few years ago, this article suggested nearly 70% of Americans were afraid their information would be stolen by hackers (while only 18% feared being murdered).  No doubt, recent reports discussing election-related hacking and the seemingly endless release of secret information by WikiLeaks have us even more frightened over digital security.

Employers need to be vigilant in their efforts to prevent improper access to and use of confidential data.   Data security breaches can trigger extensive reporting requirements and corrective measures under state and federal law.  To make things worse, employers who fail to implement proper data security protocols risk lawsuits from parties affected by the breach.  A recent case from the Massachusetts Appeals Court highlights this danger.

In Adams v. Cong. Auto Ins. Agency, Inc., 90 Mass. App. Ct. 761 (2016), an employee with access to sensitive information about insurance claims disclosed confidential data to her boyfriend, Daniel Thomas.  The employee, Elizabeth Burgos, worked as a Customer Service Representative for Congress Auto Insurance.   Back in 2010, Burgos and her boyfriend were arrested after police found a stolen semi-automatic firearm concealed in Burgos’ purse.  Burgos admitted to law enforcement the weapon was hers.  Congress Auto Insurance later found out about the incident, but Burgos told her employer it was a “misunderstanding” and the weapon belonged to Thomas.  The employer did no further investigation.

A few years later, Thomas was involved in an accident with a motorist, Michael Adams, who subsequently filed an insurance claim against Thomas.  Burgos used her access to Congress’ database to obtain personal information about Adams, including his cell phone number, and gave the information to her boyfriend.  Thomas then called Adams and threatened to hurt him if he did not drop the insurance claim.  Following an investigation, Congress fired Burgos for misappropriating Adams’ confidential information.

Unfortunately for Congress, the story didn’t end there.  Adams subsequently sued Congress for negligently failing to safeguard his personal information.  The lower court dismissed this claim, but the Appeals Court reversed.  The Appeals Court concluded dismissal was premature because Adams could succeed at trial under two possible theories:  (1) allowing Burgos unrestricted access to confidential information unnecessary for her job; and (2) failing to investigate Burgos’ fitness for access to confidential information.

What’s the takeaway for employers?  First off, now more than ever businesses need to implement practices and procedures geared toward protecting sensitive information about customers and employees.   This involves, at a minimum, regular review of data security policies and procedures coupled with adequate employee training.  Second, employers need to remember to do a proper investigation when they learn crimes are committed by employees—especially when such employees have access to sensitive and/or confidential information.   Employers should consider limiting access to confidential information if the investigation reveals a crime undermining trustworthiness was committed.

Posted in Data Security, Policies | Leave a comment

EEOC Issues Proposed Enforcement Guidance of Unlawful Harassment, Seeks Comment

by Amelia J. Holstrom

On January 10, 2017, the Equal Employment Opportunity Commission (EEOC) issued its Proposed Enforcement Guidance on Harassment.  The proposed guidance touches on a number of matters, both new and old. In the majority of the 75-page proposed guidance, the EEOC reiterates the elements of harassment and the defenses available to the employer, and provides a number of examples.  In the remainder of the document, however, the EEOC specifically defines each protected class under federal law and provides some training tips for employers.

Unlike the Massachusetts’ anti-discrimination law, which expressly lists gender identity and sexual orientation as protected classes, the federal statute, Title VII, does not.  The EEOC, however, has begun to interpret the prohibition against sex discrimination and harassment to include discrimination and/or harassment based on sexual orientation and gender identity.  As a result, as it has done in the past, the EEOC includes in its definition of sex discrimination and harassment discrimination and harassment based on sexual orientation and gender identity.

Although the EEOC has a long-standing practice of issuing harassment guidance, the EEOC appears to take things a step farther in the January 10 guidance and makes some policy and training suggestions for employers.  The proposed guidance states that the “cornerstone of a successful harassment prevention strategy” rests with senior leaders who must consistently maintain that harassment will not be tolerated in the workplace.  The EEOC sets forth that leaders should frequently and clearly state that harassment is prohibited, allocate resources and time for harassment prevention strategies and efforts, and assess and eliminate harassment risks.

Additionally, the EEOC suggests that employers have an anti-harassment policy, which should include, among other things, a statement that harassment based on any protected characteristic is prohibited, examples of what constitutes harassment, including a definition of prohibited conduct, a statement encouraging employees to report inappropriate conduct, a statement that the employer will conduct a prompt and thorough investigation, and a statement that retaliation is prohibited against those who file complaints and/or participate in investigations.

For employers in Massachusetts, should the proposed guidance be finalized as is, most employers already have an anti-discrimination and anti-harassment policy that meets the EEOC’s suggested criteria.  Under Massachusetts law, employers are required to have a sexual harassment policy which contains a number of the same criteria.  As a practical matter, however, most employers have adopted and issued broader anti-discrimination and anti-harassment policies that include all types of unlawful harassment, as the EEOC suggests.  Should the EEOC’s guidance be finalized, however, employers should review their policies to see if they want to or should make any changes based on the guidance.

Lastly, the proposed guidance indicates that employers need an effective and accessible harassment complaint system and that they should conduct repeated and regular anti-harassment training that is led by senior leaders.

The EEOC does not directly state what sparked its decision to reiterate some of its previous guidance and make new suggestions for employers in the proposed guidance, but its decision appears to be motivated, at least in part, by the increase in the number of harassment charges brought before the EEOC in 2015.  Almost one-third of the 90,000 charges filed before the EEOC in 2015 contained allegations of unlawful harassment.  The 2016 data is not yet available.

The EEOC is seeking public comment on the proposed guidance, which can be submitted electronically here or by sending written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E. Washington, D.C. 20507 by March 21, 2017.  After the comment period closes, the EEOC will review all feedback and consider making revisions prior to finalizing its guidance.

Notably, the proposed guidance was issued just 10 days before President Donald Trump was sworn into office.  As a result, the proposed guidance may be delayed, significantly changed, or eliminated altogether.  For example, it isn’t any secret that at least some members of Trump’s administration have opposed interpreting the terms “sex discrimination” in Title VII to include sexual orientation and gender identity. And, within hours of taking the oath of office, some media outlets were reporting that the White House website had removed a number of webpages that appeared on White House website just hours before, including the LGBT rights page.  Combine this with the fact that President Trump will be able to appoint, with the approval of the Senate, several individuals to the EEOC, and we might see some significant changes in the EEOC’s agenda.  Specifically, the EEOC is made up of a Chair, Vice Chair, three Commissioners, and the General Counsel.  The Chair of the EEOC, Jenny R. Yang, who was named by President Obama and unanimously confirmed by the Senate has a term ending on July 1, 2017.  The Vice Chair and General Counsel positions are currently vacant.  As a result, President Trump will have the opportunity to appoint, subject to approval by the Senate, a new Chair, Vice Chair, and General Counsel in the next few months.  Additionally, Commissioner Chai Feldblum’s term ends in July 2018; Commissioner Charlotte Burrows term ends in July 2019; and Commissioner Victoria Lipnic’s term ends in July 2020.  As a result, President Trump’s administration will have the opportunity to shape the make-up of the EEOC, which may impact the EEOC’s stance on certain issues, including those addressed in this proposed guidance.

My colleague Stefanie Renaud and I 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” at which we will analyze, among other things, the potential impact of the new administration on the EEOC, as well as the DOL Overtime Rule, Labor Relations, and other matters important to employers.  If you would like more information or would like to register, please call our office for more information.

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 Discrimination, Harassment, Policies, Retaliation, Title VII | Leave a comment

Massachusetts Independent Contractor Statute Still Going Strong After FAAAA Preemption Attack

by Amelia J. Holstrom

Massachusetts has one of the most – if not the most – restrictive independent contractor statutes in the United States.  The statute is 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 entitled to the benefits and rights of employment.  Consistent with its intended 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.

Over time, courts have grappled with whether the Federal Aviation Authorization Act of 1994 (FAAAA), which applies to employers in the motor carrier industry, preempts the Massachusetts independent contractor statute.  If the law were preempted, it would mean motor carrier employers would be able to disregard the independent contractor requirements for certain workers.  Recently, the Massachusetts Supreme Judicial Court (SJC) weighed in on issue and provided an answer to the long-asked question.

Generally, a state law may be preempted by federal law when there is a conflict between the state and federal laws. In the various challenges to Massachusetts’ independent contractor law, motor carrier companies have claimed that the independent contractor law was preempted by the FAAAA because the FAAAA, which was enacted in an attempt to deregulate the trucking industry, prohibits states from enacting or enforcing laws regarding the “price, route, or service of any motor carrier…with respect to the transportation of property.”

The recent SJC case involved RDI Logistics, Inc., a company that provides delivery services for furniture retailers.  RDI contracted with truck drivers to provide those delivery services.  Those truck drivers filed a lawsuit against RDI alleging that they were misclassified as independent contractors and were entitled to overtime pay.  RDI responded that the independent contractor law couldn’t apply to it, because the law was preempted by the FAAAA.  RDI claimed that prong 2 of the independent contractor test was impermissible, because requiring trucking companies to use employees rather than independent contractors for their services imposed a “significant impact” on motor carriers.   The trial court agreed with RDI and dismissed the claims.  The drivers then appealed, and instead of heading to the Appeals Court, which is the typical process, the SJC granted direct appellate review, which means that the case went directly to the highest court in the state.

The SJC agreed with RDI’s argument that prong 2 imposes an impermissible impact on transportation services under the FAAAA and is therefore preempted by federal law. However, the court concluded that the FAAAA did not preempt the entirety of the independent contractor statute, but rather it only preempted prong 2.  Therefore, instead of declaring the entire law preempted, as the lower court had done, the SJC decided that prongs 1 and 3 still apply to motor carriers and therefore motor carrier companies are not free to disregard those parts of the law.  The case is Chambers, et al. v. RDI Logistics, Inc., et al.

So, what does this all mean?  Employers covered by the FAAAA get a small break from the independent contractor statute from this case.  Specifically, 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.  Although it is still a difficult test to meet, it is not the impossible test that existed when prong 2 applied.

Employers still need to be careful when classifying individuals as independent contractors.  One misstep can lead to years of litigation for owed wages, which will be costly in the long run.  As a result, employers should consult with labor and employment counsel anytime they are thinking of hiring independent contractors.

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

Legislature Delays Marijuana Sales, But Employers Should Not Delay In Evaluating Existing Drug Policies

by Susan G. Fentin

How time flies when you’re having fun!  It was only four years ago that Massachusetts voters approved a referendum question that allowed individuals to obtain prescriptions for medical marijuana.  Then last November, voters approved the recreational use of marijuana.  Since December 15, 2016, individuals in Massachusetts have had the right to possess, grow, and use limited amounts of marijuana for recreational purposes.  And up until last week, we expected retail pot sales to begin by around January 1, 2018.

The initial law created a Cannabis Control Commission (CCC) to regulate retail sales of marijuana and required the state treasurer to appoint members of the new CCC by March 1, 2017, who would have until September 15, 2017 to issue regulations governing the retail sale of marijuana.  Hence, the expected retail “grand opening” date of January 1, 2018.

Last week, however, Governor Baker signed a bill that delays this timeline by six months – now, CCC members must be appointed by September 2017, and the deadline for the CCC to issue its regulations has been moved to March 15, 2018.  This means the new target date for the opening of retail marijuana establishments is July 1, 2018.

Despite this delay in the sale of recreational marijuana, employers in the Commonwealth are already faced with what to do with a workforce that could be legally using marijuana on a regular basis and how to handle the possible increase in positive drug tests for applicants.

Indeed, one of my clients called me a week ago concerned that her company’s pre-employment drug testing policies might result in increased difficulty filling vacant positions.   And that’s a legitimate fear.  After all, if individuals could test positive for their weekend use of alcohol, hardly anyone would pass a Monday morning test, especially during the holiday season.  So what does the recreational use of marijuana mean for Massachusetts employers?

Let’s start with a brief review of drug testing law in Massachusetts.  Massachusetts permits three circumstances when an employer can ask an individual to take a drug test:  pre-employment, reasonable suspicion, and random testing for safety-sensitive positions.  The restrictions on drug testing come from the courts’ efforts to ensure that employers don’t violate an individual’s privacy rights without good reason.  An individual has a high expectation of privacy in the contents of his/her bodily fluids, so in order to allow an employer to violate those privacy rights, either the employer has to have a really good reason, or the employee has to waive his/her expectation of privacy.   And Massachusetts has a privacy rights statute, Mass. Gen. L. Ch. 214, s. 1B, which protects individuals from unwarranted invasion of their privacy.  This statute could complicate an employer’s ability to drug test current employees if the employer doesn’t proceed carefully.

In the application context, individuals are not forced to apply for a job if they are told up front that a positive drug test will disqualify them from employment; they can just walk away.  So if they consent to the test, they are basically waiving their privacy rights.  In the case of drug testing current employees, if an employer has a reasonable suspicion that the employee is working under the influence, the employer’s interests in a safe and substance-free work environment will trump the individual’s privacy rights, so long as the suspicion is based on actual observation or specific information.

Another way to help avoid violating employees’ privacy rights is to lower their expectations of privacy by implementing a drug testing policy.  After all, if employees are told in advance that their use of drugs or alcohol could lead to a drug test, they are using those substances at their own risk.  Similarly, if employees work in a safety-sensitive position, such as working with dangerous equipment or driving a fork lift for example, the employer’s interest in ensuring employee safety will outweigh the employee’s privacy interests.  Indeed, safety-sensitive positions are the only way an employer can randomly drug test its employees.

So what options do employers have?

Employers that are truly concerned that drug testing applicants will lead to serious problems filling vacant positions can dispense with pre-employment drug testing for marijuana or eliminate pre-employment drug testing for all substances.  That doesn’t mean that employers will have to tolerate employees smoking (or otherwise consuming) weed on the job, whether for medicinal or recreational purposes (both statutes make that clear).  The recreational use law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana, whether for medicinal purposes or off-duty.

And it also doesn’t mean that employers will need to ignore someone who appears to be “high” on any substance, whether legal or illegal.  Testing is still permissible.  But experienced labor and employment attorneys recommend proceeding carefully.  The first step for employers who want to continue to test will be to ensure that they have a legally-compliant drug testing policy, maybe one that includes a last chance agreement for employees who test positive but who want to enter rehab.  And employers who want to test for reasonable suspicion are well-advised to have an observed behavior checklist that specifies the specific reasons why they think the employee is under the influence, such as slurred speech, stumbling, bloodshot eyes, or any other indication that the employee’s behavior could be affected by drug or alcohol use.  (Note: Repeated trips to the vending machines for Cheetos is probably not a reliable indicator!)   Employers who have safety-sensitive positions should arrange for a testing facility to manage the random nature of a random drug testing program:  It’s easier to avoid an accusation that the employer is targeting a particular individual if the selection for testing is managed by an independent third party.

What if the test comes back positive?

So far, employers who subject employees or applicants to drug screens are still permitted to terminate or refuse to hire if the individual tests positive for marijuana, even now that the drug is legal in Massachusetts.  So long as marijuana is still illegal under federal law, courts across the country, including Massachusetts, have ruled that employers who test employees for marijuana can take action against an employee who tests positive.  That being said, employers should be aware that the use of marijuana by employees may be increasing now that the growth, use and possession of marijuana has become legal. This means that employers may see a rise in employees “under the influence” at work, positive drug test results, and requests to tolerate off-site use of the drug as a reasonable accommodation for a disability.

Employers who drug test current and prospective employees for positions that are not safety-sensitive should also be aware that they run the risk of being sued for an invasion of privacy under a recent ruling by the Massachusetts Superior Court, Barbuto v. Advantage Sales & Marketing, Inc.  The decision is an outlier, has been appealed, and so far, there has been no actual finding that the drug test in that case invaded the employee’s privacy.  But even though the court dismissed the employee’s claims under the Medical Marijuana statute, the court allowed the employee’s privacy rights claim to go forward.  In Ms. Barbuto’s case, there was no reasonable suspicion that her use of medical marijuana impaired her ability to perform her job; she worked for a day without incident before her pre-employment drug test came back positive, resulting in her termination.  Unless the Appeals Court reverses the decision, the employee will have an opportunity to gather evidence and potentially even to present her case to a jury based on her claim that her termination for use of medical marijuana violated her privacy rights.

Of course, one problem for employers is that the operative chemical in marijuana, THC, stays in the employee’s system long after ingestion.  That means that a good employee or potential applicant can legally smoke a joint on a Saturday night and still test positive for THC on the following Monday.  As marijuana use becomes increasingly legal across the country, enterprising drug testing companies may come up with affordable tests that measure the amount of THC in an employee’s system, so employers could take action if an employee’s level of that chemical exceeds some reasonable standard.   There are other problems here, however:  One employee’s tolerance for marijuana may be significantly lower or higher than another employee’s tolerance, so measuring the level of THC in the employees’ systems might not be a reliable indicator of inebriation.  But so far, it’s legal to test and legal to terminate or refuse to hire, so long as the employer follows the rules. Employers with questions about implementing a drug testing policy for their company should consult with experienced labor and employment counsel.

Posted in Drug Testing, Legislation, Policies | Leave a comment