Employment Law Bits

Massachusetts pioneers plan to be “Model Employer” for workers with disabilities

On June 25, 2009, Governor Patrick revealed the Commonwealth’s “Strategic Plan to Make Massachusetts a Model Employer for People with Disabilities.” The plan boasts a number of significant and positive changes in worker retention and recruitment, and it addresses the “significant under-employment of people with disabilities, including older workers aging into disability,” as a priority for the state.

The Commonwealth has joined forces with the University of Massachusetts Medical School to provide $2.5 million dollars in funding to the Centers for Medicare & Medicaid for regional employment collaboratives, in support of increased private sector employment of people with disabilities.

The plan will bring big changes to the Human Resource Department (HRD) as well, including but not limited to, “outreach, recruitment, hiring, retention, and promotion of people with disabilities,” the Governor’s Office announced in its press release. Also included in the plan is a fund that would enable the state to implement reasonable accommodations—including access to assistive technologies—for those in need, widening the job opportunities available to them. Yet another novel approach to the retention and recruitment of workers with disabilities is the establishment of a summer internship program in the government sector that focuses on youth with disabilities.

For more information regarding the ways in which Massachusetts is leading the way toward increased employment of workers with disabilities, visit http://www.mass.gov.

A Summary of the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) was passed “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” Under FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job-protected leave for specified family and medical reasons.

Recently, FMLA was amended by the National Defense Authorization Act for FY 2008. The changes affected by these amendments include allowing employees to take up to twelve weeks of leave for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impeding call or order to active duty, in support of a contingency operation. Additionally, employees are allowed to take up to twenty-six weeks of leave to care of a covered service member with a serious injury or illness.

To be eligible for FMLA benefits an employee must:

• Work for a covered employer (any public agency, including state, local, and federal employers and any private sector employer with fifty or more employees);


• Have worked for the employer for a total of at least twelve months (need not be consecutive);


• Have worked at least 1,250 hours in the previous twelve months.

If an employee is eligible for FMLA leave, the employer must grant him or her up to a total of twelve weeks unpaid leave during any twelve month period, if one of the following events occurs:

• The birth and care of a newborn child of the employee;


• Placement with the employee of a son/daughter for adoption or foster care;


• A spouse, son, daughter, or parent with a serious health condition requires care;


• The employee suffers from a serious health condition; or


• Qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty in the military.

It is unlawful for an employer to interfere with, restrain or deny the exercise of any right provided by FMLA. If you feel that your rights have been violated, you are urged to contact an employment law attorney.

Proving age discrimination proves difficult

On June 18, 2009, the Supreme Court handed down a judgment interpreting the Age Discrimination in Employment Act (ADEA.) The 5-4 split decision raises a hurdle for plaintiffs trying to prove that adverse employment actions were the result of age discrimination on the part of employers.

Before the High Court’s recent pronouncement, ADEA cases were usually decided using a burden shifting framework. Under this analysis, once the plaintiff produced evidence showing that age was a motivating factor in the demotion or firing, the burden was put on the defendant to prove that the action would have been taken regardless of age.

According to the court, this analysis is not authorized by the language of the ADEA. The correct approach, says the court, is for the burden to always stay with the plaintiff. Now, to be successful in an age discrimination suit, a plaintiff must prove by a preponderance of the evidence that, with regards to the adverse employment decision, age was not just a motivating factor, but was the determinative factor. With the conclusion of many cases dependent on who ultimately has the burden of proof, this decision puts plaintiffs at a great disadvantage.

Though this decision is a victory for employers, it rests on the language of ADEA legislation. If Congress feels the effects are too unfair to employees, it is free to amend the statute to restore the burden shifting framework.

If you feel you have been the victim of age discrimination in the workplace, please do not let this decision deter you from seeking to defending your rights. Contact a qualified attorney to discuss your legal options.

When an employment test violates the Civil Rights Act – an employer’s dilemma

When an employer is looking to promote employees, standardized testing can be a great way to help choose which employees best fit prospective positions. The process allows for an objective evaluation of an employee’s skills and competency. Using such an unbiased measure can help to ensure that employment decisions are based on merit, allowing the most qualified candidates to attain the appropriate positions. The problem for employers, as shown in the recent Supreme Court decision, is when the test proves to not be as unbiased as the employer hoped.

In 2003, the City of New Haven, Connecticut was looking to make promotions within its fire department. Exams were administered with the understanding that the results would be used to determine who would be considered for advancement. The tests were prepared by an outside agency and were certified to be racially neutral. 118 firemen took the examination. The results of the test showed that of the 27 black firemen tested, not one would have been considered for a promotion.

Confounded by the result, the city decided to throw out the results of the test. The concern was that using the test scores might be deemed to violate the 1964 Civil Rights Act, which forbids employment practices that have a disparate impact on minorities.

However, the same legislation also prohibits intentional racial discrimination. Accordingly, the firefighters who would have qualified for the promotion sued the city claiming the decision to invalidate the exam was based solely on race.

Ultimately, the Supreme Court agreed with the aggrieved firemen that the city violated their rights. The Court recognized the difficult situation facing the city but reasoned that taking the race-based action would only be warranted if there existed a “strong basis in evidence” that using the test scores would result in the city being held liable in a disparate impact lawsuit. The city did not produce such evidence to meet this burden.
    
The important lesson for employers to take away from this case is that decisions predicated on race do not have to have sinister motivations to be unlawful. In this case, New Haven was trying to operate in the spirit of the Civil Rights Act, however, unfortunately, in doing so, they violated that very law.

Exceptions to the Employment-at-Will doctrine

This post is the fourth in a 4-part series.

The general rule of employment-at-will is that an employee can be fired for good cause, bad cause or no cause at all. There are three major exceptions to that rule. However, states vary in recognition of each exception. For example, Massachusetts does not recognize the implied-contract exception, while Connecticut does not recognize the covenant of good faith and fair dealing. The three exceptions are:

• Public-Policy – an employee may not be terminated if the termination is in contravention of an unambiguous, well-established public policy of the state. The most prevalent example of the public policy exception is the termination of an employee who files a worker’s compensation claim.
• Implied-Contract – this exception applies where an employer makes an oral or written representation to an employee regarding job security. Even in the absence of an express, written employment contract, courts will sometimes imply a contract based on the representations made by the employer. Another common example of the implied-contract exception is where an employee handbook outlines the procedures that will be followed by the employer prior to terminating an employee, and those procedures are not followed, or states that the employee may only be terminated for “just cause.” Although the handbook is technically not an official employment contract, absent an express provision to the contrary, courts will often imply a contract.
• Covenant of Good Faith & Fair Dealing – courts will imply a covenant of good faith and fair dealing into every employment relationship, regardless of the existence of a written employment contract. Under this exception, employers are either required to show “just cause” for terminating an employee, or are prohibited from terminating an employee in bad faith or based on malice.

If you believe that you have been a victim of wrongful termination pursuant to one of the above exceptions, you are urged to contact an attorney.

Protection against retaliation resulting from a discrimination claim

This post is the third in a 4-part series.

If an employee files a claim for discrimination or reports unlawful conduct by his or her employer, the employer is prohibited from taking an adverse employment action against the employee. Massachusetts law requires the employee to show three things in order to prevail on a claim of retaliation.

1. The employee engaged in protected activity
2. The employer knew of the protected activity and subsequently acted adversely against the employee
3. The adverse employment action was related to the protected activity

Protected Activities – Some examples of protected activity given by the Massachusetts Commission Against Discrimination (MCAD) are:

• Speaking to someone at the MCAD, Equal Employment Opportunity Commission (EEOC) or other civil rights or law enforcement agency, or to an attorney about the possibility of filing a claim of discrimination against the employer
• Filing a complaint at the MCAD or EEOC against the employer
• Filing a complaint in court
• Talking to an MCAD or EEOC investigator about another employee’s charge of discrimination against the employer
• Testifying as a witness concerning a claim of harassment against the employer
• Complaining to management or filing an internal complaint of harassment
• Asking a supervisor or co-worker to stop engaging in harassing conduct
• Cooperating with an internal investigation of a sexual harassment complaint
• Or meeting with co-workers to discuss how to stop sexual harassment in the workplace.

Adverse Actions – Examples of adverse employment action include: termination, denial of promotion, demotion in title or duties, transfer to a less favorable position or location, involuntary placement on leave, hostile or abusive workplace treatment, or decreasing compensation or benefits.

Legal protection against discrimination

This post is the second in a 4-part series.

Although the general rule in the United States is that an employer can fire an employee for good cause, bad cause, or no cause at all, the government has taken steps in the last century to afford employees more protection. Several laws have been passed with the intent of protecting employees from employment-related discrimination. Here is a brief summary of the federal laws that protect employees:

• The Civil Rights Act of 1964 (Title VII) – prohibits employment discrimination based on race, color, religion, sex, or national origin;
• The Equal Pay Act (EPA) – protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• The Age Discrimination in Employment Act (ADEA) – protects individuals who are 40 years of age or older; 
• The Americans with Disabilities Act (ADA) – prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments; 
• The Rehabilitation Act – prohibits discrimination against qualified individuals with disabilities who work in the federal government; and
• The Civil Rights Act of 1991 – provides monetary damages in cases of intentional employment discrimination.

These laws are enforced by the United States Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination. If you feel that you have been discriminated against at your job in violation of one of these laws, you should contact an attorney

The U.S. Supreme Court revisits maternity leave: AT&T Corp. vs Hulteen

In 1978, Congress passed an amendment to Title VII, known as the “Pregnancy Discrimination Act” (“PDA”,) making it illegal for an employer to discriminate against an employee because of a pregnancy. The PDA went into effect in 1979 and influenced various corporations to adjust personnel policies. AT&T, for example, changed its policy to calculate service credit for maternity leave in the same way the other kinds of leave were calculated. However, AT&T did not retroactively enforce the change of its personnel policy to the service credit of women who had gone on maternity leave pre-PDA.

In AT&T Corp. v. Hulteen, four female AT&T employees sued the company, alleging their pre-PDA credit should be recalculated according to the post-PDA policy, which would entitle them to greater pension benefits. All four employees took pregnancy leave between 1968 and 1976. On May 18, 2009, the United States Supreme Court reversed the lower court holding in favor of the employees, holding the PDA did not require retroactive application.

The Court held that an employer does not necessarily violate the PDA if it applies a seniority system that was in effect pre-PDA to pregnancy leaves taken prior to 1979, even if that system would violate the PDA if enacted today. The Court explained that seniority systems are afforded special treatment under the law. However, there must be no evidence that the pre-PDA system was enacted with the intent to discriminate. The Court found no evidence of discriminatory intent by AT&T.

This holding is significant because if the Court had ruled for the employees, women who took maternity leave pre-PDA, and are leaving their employment soon ,would be entitled to greater pension benefits. Although this can be considered a victory for employers, they should still consult with legal counsel when giving current effect to pre-PDA policies that differentiate pregnancy leave from other types of leave.

Female workplace bullying: dealing with school antics at work

Bullying is not a new phenomenon. It is almost expected among children and teenagers. However, many would be surprised to learn how widespread bullying is in the workforce. Of those who are not surprised, many would likely assume that the role of the bully is played by a male supervisor. However, a recent survey conducted by the Workplace Bullying Institute reveals that approximately forty percent of bullies are women. Moreover, women are the targets of bullies fifty-seven percent of the time.

A recent article in the New York Times, entitled “Backlash: Women Bullying Women at Work,” focused on the rise of women bullying other women at work. The article indicates that while male bullies often target men and women alike, women are more likely to bully female colleagues than their male counterparts. Moreover, the bully is often someone in a position of power. Furthermore, whereas men are more obvious with their bullying tactics, female bullies are more likely to be covert. The article also suggests that the increase in women bullies is correlated with their on-going struggle with the glass ceiling. Many women feel they must give off a “tough as nails” vibe to get, and stay, ahead.

Employers beware: if a supervisor, male or female, unleashes an unequal amount of aggression on female employees, the employer may be held liable for sex-based harassment or sex discrimination. Therefore, employers in general and supervisors in particular should refrain from questionable conduct that might be taken as harassing or discriminatory.

EEOC announces strategies for employers in dealing with the Swine Flu outbreak

In response to the recent swine flu outbreak, the Equal Employment Opportunity Commission (EEOC) has produced several comments directing employers on how to avoid a potential Title VII or ADA violation.

On May 11, 2009, the EEOC warned that “Swine Flu discrimination” could be considered a violation of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC cautioned employers against discriminating against Mexicans out of fear of swine flu. Essentially, to bring a claim for violation of Title VII, one must first demonstrate that they belong to a protected class, such as race, gender, or—in this case—national origin. By refusing to hire someone of Mexican origin for fear that they are carrying the swine flu, an employer may be causing a disparate impact on a protected class. The caveat: employers should steer clear of refusing to hire persons of Mexican origin.

Additionally, the EEOC recommends that employers institute a neutral policy that requires any employee who contracts the swine flu to take a leave of absence. That will likely insulate an employer from a Title VII violation.

Further, in response to growing concern, the EEOC also disseminated information regarding whether employer requests for health information would violate the Americans with Disabilities Act (ADA). The EEOC responded to this concern in three categories, (1) pre-employment offer, (2) post-employment offer, and (3) current employees.

The short answer is that before an offer for employment is tendered, an employer may not request health information or medical examinations of any kind. However, once an offer is made, but prior to the new employee’s start date, an employer may request such information, regardless of whether it is sufficiently job-related, so long as this procedure is implemented for all similarly situated new hires.

Finally, an employer may only request medical information from current employees if the request is sufficiently job-related and consistent with a business necessity. However, beware of a caveat here as well. When it is acceptable for an employer to request that employees undergo medical examinations, the information collected must remain strictly confidential.

Some final thoughts on employer procedure dealing with swine flu at the workplace - employers may require employees to wear protective equipment such as a face mask on-the-job without concern for a potential ADA violation. Employers may also recommend or require that employees work from home to control an outbreak, so long as an employee is not singled out in the process.

For more information regarding proper employer procedure during the swine flu epidemic, please consult the EEOC, or make an appointment with an employment law attorney.