Employment Law

Massachusetts SJC’s Decision in Bulwer v. Mount Auburn Hospital Stops Erosion of Right to Jury Trial in Employment Cases

Published on: April 1, 2016 | by Ruth O'Meara-Costello

Among lawyers who represent employees in discrimination lawsuits, the most maligned rule of civil procedure is Rule 56, which governs summary judgment—a time-consuming, expensive, and frequently unfairly applied procedure in which judges decide cases on paper instead of allowing juries to hear the parties’ evidence. In Massachusetts, the Supreme Judicial Court’s recent decision in Bulwer v. Mount Auburn Hospital should help to discourage employers from filing motions for summary judgment, and help plaintiffs to get their cases before a jury.

Motions for summary judgment ask the court to enter judgment for a party prior to trial and without allowing a jury to hear the evidence. Either side can make such a motion, and in cases where the parties agree on the basic facts, summary judgment can be a useful tool for resolving cases that turn purely on a question of law without expending resources on a full trial. In the practice of employment law, though, the employment defense bar devoted to protecting companies from discrimination claims has successfully perverted summary judgment into a tool for taking the ultimate contested issue of fact—whether the employer chose to fire or otherwise take action against the plaintiff because of his or her race, gender, sexual orientation, disability, or age—away from the jury. Instead, employment defense lawyers ask judges to answer that question based on a paper record, depriving the plaintiff of the chance to tell his or her story. Judges, unfortunately, have been all too eager to accept the invitation to substitute their own judgment of the evidence for that of a jury, and summary judgment has become an important hurdle for many employment plaintiffs—one that can be difficult and costly to surmount.

Proposed New Equal Pay Legislation Makes Needed Updates to the Massachusetts Equal Pay Act

Published on: February 16, 2016 | by Emma Quinn-Judge

Massachusetts is one step closer to a strengthened equal pay law after the State Senate passed equal pay legislation in late January. The bill, which now goes to the House of Representatives for review, seeks to address the continuing wage gap between men and women. Although Massachusetts adopted its first-in-the-nation equal pay act in 1945, women in Massachusetts still earn approximately 80 percent of what men earn. Women of color earn even less: African-American women earn 66 cents on the dollar, while Latina women earn 54 cents on the dollar compared to men. An analysis by the Institute for Women’s Policy Research has concluded that Massachusetts will not close the pay gap until 2058.

The proposed new law seeks to accelerate the rate of change by making three key updates to the Massachusetts Equal Pay Act (“MEPA”). First, the legislation broadens the definition of “comparable work” by explaining that “comparable work” is any work that is “substantially similar” in content and requires “substantially similar” skill, effort, and responsibility, performed under similar working conditions. Moreover, employers cannot rely solely on job titles or descriptions to determine whether work is comparable. If adopted, this new definition would overrule the narrower “comparable work” definition created by the Supreme Judicial Court in two decisions issued in the mid-nineties in the same case, Jancey v. School Committee of Everett. Those decisions – the first to squarely interpret “comparable work” in the context of the state’s equal pay act – failed, as the dissenting justices noted in Jancey II, to look “beyond job labels” and perceptions of job differences “that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.” By moving away from the Jancey definitions, the new legislation permits a broader analysis of whether work is truly comparable.

Will the NLRB Decision Allowing Secret Recording in the Workplace Affect Massachusetts Workers?

Published on: January 11, 2016 | by Naomi Shatz

This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace. For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.

What Does the NLRB Decision in the Whole Foods Case Mean for Recording in the Workplace?

Published on: January 8, 2016 | by Naomi Shatz

Whole Foods, a major grocery store chain, has a company-wide policy that prohibits its employees from making any recording—audio or video—and from taking any photographs in any area of a Whole Foods store. But a recent decision by the National Labor Relations Board (NLRB) might require Whole Foods to make serious changes to its policy, in order to make sure that it isn’t trampling on employee rights under the federal National Labor Relations Act (NLRA). We are discussing the impact of this decision in two posts. This post explains the NLRB’s decision and what it may mean for employees in states where no other law prohibits such recordings. For Part Two of this series, click here.

The NLRB is the body tasked with interpreting the NLRA. And it recently sided with the employees who challenged Whole Foods’ policy on recordings. It determined that the policy violated the Act because it interfered with employees’ rights under Section 7 of the Act, which grants employees the right to join together to advance their interests. The NLRB appeared to concede that the Whole Foods rule did not explicitly restrict activities protected by Section 7 of the NLRA, but held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling effect on employees’ exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overbroad recording policy.

Judge’s Discovery Order in EEOC Transgender Litigation: Right Result, But Reason for Caution

Published on: September 28, 2015 | by Ruth O'Meara-Costello

I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future. At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan. In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case. While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes). Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy. The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

Substantial Statistical Disparities in a Workforce Do Not Justify Gender-Based Hiring Policies

Published on: August 4, 2015 | by Emma Quinn-Judge

On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women. In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring. Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010. The BPD hires candidates by considering the following groups in order. First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class). Then the department turns to a “main certification” list. Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department. The next category is for those with a preferred hiring status, such as veterans. The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam. Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

Supreme Court Expands Protection Against Religion-Based Employment Discrimination

Published on: June 8, 2015 | by David Russcol

The Supreme Court has recently been quite receptive to litigants asserting their rights to religious freedom. (For Exhibit A, see Burwell v. Hobby Lobby.) On June 1, the Court in EEOC v. Abercrombie & Fitch applied that pro-religion perspective in the employment discrimination context and took a fairly strong stand against religion-based discrimination. The Court held that employers cannot hide behind facially neutral policies where religious practices are concerned. Rather, it stated that religious practices must be given “favored treatment,” and a failure to accommodate religious practices constitutes intentional discrimination under federal law, subjecting employers to damages.

In this case, a woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She is a practicing Muslim and wears a headscarf. The assistant manager who interviewed her would have hired her, but was not sure whether the headscarf would violate a store policy against wearing “caps” while on the job. The assistant manager believed (correctly) that the headscarf was religious in nature, but did not ask Elauf whether she would need an accommodation. A district manager said that any headwear, religious or not, would violate the policy, and Elauf was not hired. A lower court found this discriminatory and awarded the EEOC (on Elauf’s behalf) $20,000 in damages. The Court of Appeals reversed, holding that, to be held liable on a failure to accommodate claim, the employer must have “actual knowledge” that the employee (or prospective employee) would need a religious accommodation.

New Protections for Massachusetts Domestic Workers, Part 2

Published on: May 29, 2015 | by Monica Shah

Note: This post is Part 2 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law. Click here to return to Part 1.

What are the Employer’s Notice and Record-Keeping Obligations?

The new law and proposed regulations also impose a number of record-keeping obligations on household employers.

Domestic workers are permitted to request a written evaluation of their work within three months of their employment and every year thereafter. If an employer completes a written evaluation, the worker has the right to review it and dispute its contents under Massachusetts’ personnel record law, M.G.L. ch. 149 s. 52C. In the event of a disagreement, the personnel records law requires an employer to either amend the evaluation or include the worker’s written response with the evaluation in his or her records and in any transmission to a third party of the evaluation. M.G.L. ch. 149 s. 52C.

New Protections for Massachusetts Domestic Workers, Part 1

Published on: May 29, 2015 | by Monica Shah

Earlier this spring, the Massachusetts Domestic Workers Bill of Rights Act took effect, providing expansive new protections and rights to individuals who provide household services, including childcare, housekeeping, housecleaning, cooking, and eldercare.

In the past, domestic workers have had informal and flexible arrangements with their household employers with respect to job description and duties, hours and rate of pay, rest and vacation time, and the grievance and termination process. This has created a potential for abuse particularly in cases involving domestic workers who are vulnerable due to immigration status or who lack the ability to advocate for themselves due to limited English skills. Until the passage of the new law, domestic workers have had only limited recourse in state and federal wage and hour laws, tort, and contract law to remedy wage violations or poor working conditions.

In Da Rosa v. City of New Bedford SJC Rolls Back Access to Public Records

Published on: May 22, 2015 | by Naomi Shatz

On May 15, 2015 the Supreme Judicial Court released its opinion in DaRosa & others v. City of New Bedford, Monsanto Company & others, addressing the question of how the work-product doctrine and public records laws interact when government entities are involved in litigation. The case has negative implications for those, like our firm, who routinely litigate against public agencies in employment and other matters. It also further undercuts the effectiveness of the already-weak Massachusetts Public Records Law.

In 1999, in a case called General Electric Company v. Department of Environmental Protection, the SJC held that privileged work-product materials are subject to disclosure under the public records statute unless they fall under one of the specific statutory exemptions listed in Mass. G. L.c. 4, § 7, Twenty-sixth. The court rejected the lower court’s reasoning that there is an implied exemption in the public records statute that covers work product. It noted that although the Federal FOIA law explicitly exempts from disclosure internal documents that would not be available to parties in litigation with the government agency, the Massachusetts public records law, although modeled after FOIA, did not contain that language, indicating the legislature intended to allow work-product to be considered a public record unless otherwise exempted by statute. As a practical matter, the General Electric opinion meant that litigants engaged in suits with the government could circumvent the work-product protection and obtain government documents via public records requests that they could not obtain in the normal course of discovery.