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Archive for the ‘Employment Law Blog – MA’ Category

Update to Massachusetts Paid Family and Medical Leave

Posted on: March 2nd, 2021

By: Janet Barringer and Lori Eller

The Massachusetts Department of Family and Medical Leave (“the Department”) has continued to update its guidance and resources on the Massachusetts Paid Family and Medical Leave Law (“PFML”), which went into effect at the beginning of 2021. It is important for employers to stay updated on this guidance and their requirements under the PFML.

As of January 1, 2021, most of the paid family and medical leave benefits are now available to Massachusetts workers. These paid benefits include:

  • Up to 20 weeks of paid medical leave to manage an employee’s own serious health condition;
  • Up to 12 weeks of paid family leave to bond with a child newly born, adopted, or placed in foster care, or to manage family affairs while a family member is on active duty overseas or has been notified of an impending call to active duty in the Armed Forces; and
  • Up to 26 weeks of paid family leave to care for a family member who is a covered Service Member with a serious health condition.

The remainder of paid family leave benefits, such as up to 12 weeks of paid leave benefits to care for a family member with a serious health condition, will become available on July 1 of this year. These benefits apply to employers of all sizes and can run concurrently with FMLA leave. The benefits are capped at 26 weeks total of leave in a single benefit year for covered individuals. More detail about the specific provisions of the PFML law can be found in our previous blog about the topic.

As a result of the PFML’s implementation, the Department has continually issued new guidance for employers and for workers. The Department has stated that PFML benefits run concurrently with any employer-provided PTO, sick time, or vacation time. Thus, if an employee uses a sick day for a situation where the reason for the sick day also qualifies for PFML benefits, that sick day will reduce the total PFML days available to that employee. Further, if an employee on leave receives short-term disability benefits or paid parental leave provided by an employer plan, and such plan states it runs concurrently with the PFML, then the worker can obtain both PFML benefits and also a “top off” amount from the employer. This total amount of the maximum PFML benefit per week, plus the employer’s “top off” amount, cannot exceed the employee’s average weekly salary. The Department additionally issued guidance on intermittent leave and reduced leave schedule. This includes setting minimum leave time increments, and a default if the employer sets no minimum.

Finally, employers are eligible for reimbursement for payments made to workers if they provide short term disability benefits or a paid family/medical leave program and participate in the PFML, and if the benefits are equal to or greater than what the employee would receive under the PFML. However, payments to workers for PTO, sick time, or vacation time that was either earned/accrued or under a private plan are not eligible for this reimbursement.

The Department has also updated the website with many helpful resources to employees and employers. These available resources include:

  • Guidance for employers on how to comply with the PFML law
  • A calculator to estimate the required contributions an employer will need to send to the DFML on behalf of their employees
  • A new workplace poster that must be displayed in the workplace
  • A fact sheet including frequently asked questions
  • Instructions on how to create an employer account to review PFML applications
  • Instructions on how employees can apply for PFML, and
  • The portal to apply for PFML.

The PFML also provides a useful option for employers to require an employee to provide a fitness-for-duty certification from a health care provider before they return from medical leave. This certificate is similar to that under the federal FMLA but, if desired by the employer, can be further tailored to address the employee’s specific job functions. An employer can require that this certificate specifically certify that the employee can now perform the listed essential functions of their job, so long as a list of those functions is provided to the employee within ten days of the employer’s notice of the Department’s approval of the employee’s medical leave. If that list of job functions is timely provided to the employee, the employee will not be entitled to reinstatement, nor to an extension of benefits, after the leave period without supplying this certification to the employer. This new tool is outlined in Section 2.11 of the PFML law.

Employers can determine whether the above certification is something it wants to implement into their leave and benefits processes. It is important for employers to review and integrate these new materials into their handbooks and policies, and to make employees aware of the PFML by posting the new mandatory poster in the workplace. Employers should also create an account with the Department to review and manage PFML applications for their organization’s staff.

If you have any questions about the Massachusetts Paid Family and Medical Leave Law, feel free to contact Janet Barringer at [email protected] or Lori Eller at [email protected].

Employer’s Prohibition of Black Lives Matter Attire Insufficient Basis for Discrimination and Retaliation Claims

Posted on: February 18th, 2021

By: Jennifer Markowski and Jennawe Hughes

The federal lawsuit filed by employees of Whole Foods Market, Inc. (“Whole Foods”) and, Inc. (“Amazon”) who were prohibited from wearing Black Lives Matter (“BLM”) attire, was dealt a significant blow when a Massachusetts federal judge dismissed the majority of the case finding all but one employee had failed to allege facts sufficient to survive a Rule 12(b)(6) challenge.

In the summer of 2020, numerous Whole Foods employees began wearing face masks and other attire with BLM messaging. In July, twenty-eight current and former employees asserted claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) after being told they could not wear the BLM attire per company dress code policy (the “Policy”) and were disciplined when they refused to abide by the Policy. Employees claimed that the Policy was selectively enforced in that LGBTQ and National Rifle Association messaging had previously been permitted and that such selective enforcement was discriminatory. They further contended that disciplinary measures taken for refusing to adhere to the Policy was retaliatory.

Judge Allison Burroughs found the employees did not adequately assert a Title VII violation because the facts alleged did not support a finding that employees were treated differently on the basis of their race as all employees, irrespective of their race, were prohibited from wearing attire with BLM messaging. Judge Burroughs noted “inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination and because Title VII does not protect free speech in a private workplace.” The associational discrimination claims similarly failed because there were no allegations supporting a finding that the employees had been “discriminated against on the basis of race, rather than on the basis of race-related messaging.”

With regard to retaliation, the claims of all but one employee who engaged in protected activity, including filing a charge with the EEOC prior to her termination, were dismissed. Judge Burroughs held that wearing BLM attire was not a protected activity as it was not done to oppose an unlawful employment practice, but rather to make a broader social statement. Absent a protected activity, any disciplinary action could not be unlawful retaliation. In reaching her decision, Judge Burroughs pointedly remarked “Whole Foods employees that are not happy with the Policy can find someplace else to work, express themselves outside the workplace, work with Whole Foods to change the Policy, and/or publicize the Policy in an effort to get consumers to spend their dollars elsewhere, but, under the facts alleged here, their redress does not lie with Title VII.”

Although the bulk of the claims were dismissed, this case nonetheless serves as a reminder to employers that selective enforcement of uniform policies can be risky and open the door to a lawsuit and potential liability. It also highlights the importance of ensuring dress code policies are facially neutral.

For more information, please contact Jennifer Markowski [email protected] and Jennawe Hughes at [email protected].

US Department of Labor Issues New Guidance on Leave Under the FFCRA for Hybrid/Remote Schooling for Children

Posted on: September 2nd, 2020

By: Catherine Scott

On August 27, 2020, the Department of Labor (DOL) issued three new answers to its Frequently Asked Questions regarding the Families First Coronavirus Response Act (FFCRA). All three of these questions addressed employees’ questions regarding whether they would be entitled to paid leave under the FFCRA in the event their children’s schools returned on a remote or “hybrid” (part-remote, part in-person) basis.  

The DOL was clear that employees who otherwise qualify for leave under the FFCRA are entitled to use paid leave in the event their children’s schools require students to begin the year on a remote basis because those schools are effectively “closed” to students for the time being. For those employees whose children are only remote part-time on a “hybrid” basis, employees are entitled to intermittent leave under the FFCRA for those days in which students are attending school remotely. Employees only are entitled to this leave if they “need the leave to actually care for [the] child during that time and only if no other suitable person is available to do so.” 

The DOL also noted that, if a parent chooses to keep his or her child out of school on a remote or hybrid basis, then that employee is not entitled to paid leave under the school closure leave provisions of the FFCRA because the child’s school is not “closed” to the child. Therefore, if an employee’s child’s school has given parents the option to return their children to school in-person full time or keep children home on a hybrid or remote basis, then those employees who opt for learning on a remote or hybrid basis are not entitled to paid leave under the school closure leave provisions of the FFCRA.  Of course, these employees may be entitled to leave under other FFCRA leave provisions or other types of state or local leave statutes.

The DOL notes that employees must keep up with the changing circumstances of their children’s schools and make an ongoing determination as to whether those employees are entitled to FFCRA leave. If you have questions about whether employees are entitled to FFCRA or other leave during the pandemic, please feel free to contact Catherine Scott at [email protected] or any other member of FMG’s Employment Group.  

Massachusetts’ Highest Court Rules No Double Recovery Allowed for Back Wages

Posted on: August 5th, 2020

By: Zinnia Khan

On July 14, 2020, the Supreme Judicial Court (“SJC”) of Massachusetts held employees cannot recover unpaid back wages under two different Massachusetts wage laws because doing so would amount to a double recovery with the same set of allegations.

The ruling in Donis v. American Waste Services LLC, et al. (SJC-12842) reversed a lower court’s decision and differed from guidance issued by Massachusetts Attorney General Maura Healy.  The SJC looked at whether the plaintiffs, “shakers” who operated waste trucks and hydraulic levers for American Waste Services LLC, were entitled to damages under both the Prevailing Wage Act (G.L. c. 149, §§ 26-27) and the Commonwealth’s more general Wage Act (G.L. c. 149, § 148).  While the Wage Act has a broader application, the Prevailing Wage act applies only to employees working on certain public works projects.

The Donis plaintiffs claimed that the defendant employers failed to pay them at the rates required by the Prevailing Wage Act.  There was, however, no basis provided for a violation of the Wage act other than this specific violation of the Prevailing Wage Act.  Before the matter reached the SJC, the Massachusetts Appeals Court found the language in the Wage Act was broad enough to allow the plaintiffs to recover money under that statute.  Defendant American Waste Services appealed on the question of whether the plaintiffs could recover under both the Wage Act and the Prevailing Wage Act.

Breaking with the Appeals Court, the SJC noted the Prevailing Wage Act “already provides its own remedy.”  Accordingly, it held the plaintiffs were entitled to damages only under the Prevailing Wage Act.  They could not recoup damages under the Wage Act, which would have enabled them to also hold the defendants’ officers liable for the back pay owed.

The SJC’s decision also looked to legislative intent.  The SJC noted that, since the legislature specifically carved out the Prevailing Wage Act as a separate law with certain remedies for the types of claims the plaintiff employees brought against American Waste Services, that was the only law under which they could recover the back pay they were owed.

The court also disagreed with the Office of Attorney General Maura Healy, which filed a brief in support of the workers stating that employers must comply with both the Wage Act and any other relevant employment laws and obligations.

The SJC’s decision to curtail double recovery under the two statutes and confirm that the Prevailing Wage Act has its own comprehensive scheme for regulating payments will be reassuring to employers.  Even so, we advise businesses to exercise caution and ensure compliance with all applicable wage and hour laws, including the more broadly tailored Wage Act. 

If you have questions or would like more information, please contact Zinnia Khan at [email protected].

Agreement to Arbitrate Enforceable Even After Termination of Agreement with Assisted-Living Facility

Posted on: July 1st, 2020

By: Kevin Kenneally, Janet Barringer and William Gildea

The United States Court of Appeals for the First Circuit has upheld a challenge to the enforceability of an arbitration agreement in the senior living facility and long-term care (LTC) arena. In Biller v. S-H OpCo Greenwich Bay Manor, LLC, No. 19-1865, 2020 U.S. App. LEXIS 17735, at *1 (1st Cir. June 5, 2020) (“Biller”), the First Circuit determined an arbitration clause in a residency agreement was enforceable after the LTC resident had ceased receiving care at the facility.  With this decision, facilities will have clarity about the agreements and can rely on the contractual terms with its residents to arbitrate applicable claims, even after a resident may leave the facility. The decision should further dissuade residents from challenging arbitration clauses and reduce unnecessary litigation costs.

In Biller, the plaintiff moved into the assisted-living facility in 2016 where the plaintiff’s daughter and attorney-in-fact signed the residency agreement on her mother’s behalf. The residency agreement, among other things, stated that “it would continue indefinitely, but that either party could terminate it ‘immediately upon written notice in the event of [Plaintiff’s] death or if [she] must be relocated due to [her] health.’” Biller, supra at * 2.  The residency agreement included an arbitration provision stating, in part:

Any and all claims or controversies arising out of, or in any way relating to, this Agreement or any of your stays at the Community…. shall be submitted to binding arbitration, as provided below, and shall not be filed in a court of law…. The parties to this Agreement further understand that a judge and/or jury will not decide their case.

Id., at * 3 (emphasis in original). More than one year after moving into the defendant facility, the plaintiff alleges she suffered serious health complications due to the failure of the facility’s staff to properly administer prescribed medication. The plaintiff eventually was admitted to the hospital, and she vacated the facility permanently. 

The plaintiff brought claims under Rhode Island state law arising out of the facility’s alleged negligent administration of prescription drugs. The facility removed the action to federal court and simultaneously moved to compel arbitration. The facility resident opposed the motion to compel arbitration asserting the arbitration agreement “wasn’t in effect” between the plaintiff and the facility, in part, and claiming the agreement terminated when the plaintiff left the original unit.  The ALF facility in turn argued “the termination clause in the residency agreement had not been triggered, because [plaintiff] merely ‘receiv[ed] different services over time at the same facility’ throughout her stay; and there was no superseding agreement, because the March 2016 residency agreement contemplated additional services and fees.” Biller, supra at * 6.

The United States District Court, District of Rhode Island, denied the facility’s motion to compel arbitration because, in its view, the residency agreement terminated when the plaintiff moved to a different unit within the facility. The First Circuit Court of Appeals in Biller, however, reversed the District Court’s decision. Biller held plaintiff failed to “mount an ‘independent’ challenge to the arbitration agreement itself” and the plaintiff did not “identif[y] evidence that the parties intended not only the residency agreement but also their arbitration obligations to lapse when [plaintiff] relocated (or at some other time before [the facility] sought to invoke arbitration).” Biller, supra at * 21 (internal citations omitted).

The First Circuit Court of Appeals’ decision in Biller bolsters assisted-living facilities and other long-term care centers’ right to enforce arbitration, even after moving out. Unless a resident or the respective representative is able to establish the parties’ intent at contract formation that arbitration obligations terminate upon expiration of a residency agreement, claims arising out of the agreement should remain arbitrable.

If you have questions or would like more information, please contact Kevin Kenneally at [email protected], Janet Barringer at [email protected] or William Gildea at [email protected].