Proposed Rule by the DOL Would Increase the Salary Levels Needed to Qualify for the “White Collar” FLSA Overtime Exemption

On September 8, 2023, the U.S. Department of Labor’s (DOL) Wage and Hour Division announced publication of a Notice of Proposed Rulemaking that seeks to amend the regulations issued under section 13(a)(1) of the Fair Labor Standards Act (FLSA). These regulations implement the exemption from the minimum wage and overtime pay requirements for executive, administrative, and professional employees, known as the “white collar” exemption. The proposed amendment would increase the minimum salary levels needed to qualify as exempt and would provide an automatic mechanism for future updates of the salary thresholds to reflect changes in earnings data.

Under the FLSA, all employees must receive overtime pay for all hours worked over forty hours per week unless specifically exempted by the FLSA. The FLSA establishes certain exemptions based on an employee’s “primary” duty, such as “executive”, “administrative”, and “learned professional”. In addition, exempt employees must fall within the “white collar” exemption, which applies if:

(1) they are paid on a salary basis, earning at least $684 per week (or $35,568 per year) and meet the “long form” test for their exemption category; or

(2) they are a “highly compensated employee,” meaning they earn at least $107,432 per year and meet the so-called “short form” test regarding their duties.

The DOL’s proposed rule would raise the $684 per week threshold to an amount equal to the “35th percentile of earnings of full-time salaried workers in the lowest-wage Census Region,” which is currently equal to $1,059 per week ($55,068 per year). The proposed rule would also revise the “highly compensated employee” threshold to the “85th percentile of full-time salaried workers nationally,” currently $143,988 per year. The DOL has stated that when it promulgates the final rule it will use the most recent salary data available.

The proposed rule would also include future updates to the salary levels every three years using the same methodologies described above, calculated from the most recently available four quarters of earnings data. The new salary levels would be published by the DOL at least 150 days before they take effect.

Before the revised rule becomes final there is a mandatory period for public comments that ends on November 7, 2023. While the exact timeline for implementation of the final rule is unknown, the DOL’s previous amendment to these regulations saw a ten-month timeline between publication of the proposed rule and of the final rule.

Employers who wish to proactively prepare for this anticipated rule should consider how to treat exempt employees who currently earn an annual salary between $35,568 and approximately $60,000. Employees who have been treated as exempt based on their duties will no longer be exempt unless they meet the new, substantially increased salary thresholds .

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private employers with all wage and hour issues.

This update is provided for informational purposes only and should not be considered legal advice.

Liz Valerio and Nick Dominello To Present at 2023 Massachusetts Association of School Committees (“MASC”) and Massachusetts Association of School Superintendents (“MASS”) Annual Joint Conference

On Friday, November 10, 2023 Liz and Nick will present at the MASC/MASS Annual Joint Conference in Hyannis.  Liz and Nick will discuss trends in collective bargaining.

Massachusetts Commission Against Discrimination Holds Employer Unlawfully Denied an Employee’s Reasonable Accommodation to Work Remotely Two Days a Week and Awarded $75,000 in Emotional Distress Damages

In June, a Hearing Officer for the Massachusetts Commission Against Discrimination (MCAD) issued a decision in Massachusetts Commission Against Discrimination, et al. v. Organogenesis, Inc (No. 17-BEM-01945), holding that an employer unlawfully discriminated against an employee when it refused to grant the employee’s request for a reasonable accommodation to work remotely two days a week.

A company employee was experiencing chronic pain in her neck, shoulders, back, hips and feet, which was exacerbated by her daily 1-2 hour commute. Due to the severity of her pain, the employee approached her supervisor about the possibility of working remotely. The employee’s supervisor responded with a firm “no” and raised the notion of a severance package. Upon receiving a diagnosis of fibromyalgia, the employee provided her supervisor with a physician’s note and repeated her request to work remotely two days a week. The supervisor informed the human resources department about the employee’s accommodation request and indicated that he opposed the accommodation. When the company’s human resources representative met with the employee, the representative was terse and informed the employee that her accommodation request was denied. The representative did offer the employee a change to her schedule, a stand-up desk, and a conference room in which to stretch. Several months following this exchange, the employee resigned from her position and filed a complaint with MCAD alleging disability discrimination, including failure to provide a reasonable accommodation and constructive discharge.

The Hearing Officer concluded that the company’s refusal to grant the employee a two day per week remote work schedule constituted a failure to provide a reasonable accommodation to her disability in violation of M.G.L. c. 151B, § 4(16). In particular, the hearing officer explained that while employers are not required to provide the best accommodation available, or the accommodation specifically requested by the employee, employers do have an obligation to provide an accommodation that is effective for its purpose. A place to stretch and a stand-up desk did not address the root, exacerbating cause of the employee’s pain. Further, the Hearing Officer concluded that a partial remote work schedule would have been a reasonable accommodation and would not constitute an undue hardship. Indeed, the record demonstrated that the employee had previously worked from home 10-15 times; that the supervisor believed that the employee could have worked remotely on a one day a week basis, absent supply issues; and that much of the employee’s job required her to work independently using electronic databases, email and telephone.

While no constructive discharge was found in this case, the Hearing Officer concluded that both the employee’s supervisor and the company’s human resources department failed to engage in an interactive dialogue. The Hearing Officer further held that the breakdown in the interactive process and the failure to accommodate the employee’s disability resulted in severe, long-lasting distress and granted the employee $75,000 in emotional distress damages.

The Organogenesis, Inc decision is an important reminder that once a qualified individual with a disability requests a reasonable accommodation, the employer must engage in good faith in an interactive dialogue with the employee to identify reasonable accommodations.

If you have questions on the content of this update, or reasonable accommodations in general, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Court Raises Bar Employers Must Jump Over to Justify a Lack of Accommodation to an Employee’s Religious Practice

On June 29, 2023, the United States Supreme Court issued a unanimous decision in Groff v. DeJoy, No. 22-174 (2023), which “clarified” and effectively changed the religious accommodation standard under Title VII of the Civil Rights Act of 1964, U.S.C. §2000e(j). Under Title VII, employers must reasonably accommodate an employee’s religious practice unless the employer is unable to do so without suffering “undue hardship” on the conduct of its business. For the previous 46 years, lower courts, the Equal Employment Opportunity Commission (EEOC), and employers have relied on the Court’s statement in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) that any accommodation that requires an employer to bear more than a “de minimis cost” is an “undue hardship”. Under the Court’s new, heightened standard, an “undue hardship” is only shown when the burden of granting an accommodation would result in “substantial increased costs” in relation to the conduct of the business.

The Court in Groff explained that lower courts and the EEOC have been misinterpreting the holding of Hardison for nearly half a century. The issue in Hardison was whether Title VII required an employer to deprive senior employees of their contractually secured seniority rights in order to accommodate a junior employee’s religious observance of Sabbath. Although the opinion in Hardison indeed says that an undue hardship can be shown by any harm that is more than de minimis, it also says that an accommodation is not required when it entails “substantial” costs or expenditures. In the years following Hardison, the EEOC issued guidance utilizing the “de minimis” standard as law and lower courts applied the standard to a range of religious accommodations. Since this standard set a very low bar for employers, courts have used it to reject accommodations as simple as a dress code exemption and coverage for occasional absences. Groff also involved an employee who requested an accommodation to observe a Sabbath and the Court used the case as an opportunity to explain that the single “de minimis” sentence in Hardison was not intended to establish the rule. Instead, the Court interpreted Hardison to mean that an “undue hardship” is shown when a burden is substantial in the overall context of the employer’s business. This “clarification” of the law has effectively raised the bar employers must now clear in order to show that a requested accommodation imposes an undue hardship.

Despite this change in standard, the Court in Groff  opined that much of the EEOC’s guidance on religious accommodations is sensible and will be unchanged by the decision. The Court left the application of this standard to the particular facts of the case to the lower court on remand. Groff is an important decision because it sets the standard by which all religious accommodations will be judged moving forward. This is a very fact-specific test and employers are well-advised to seek advice in a given case where an employee seeks religious accommodation.

If you have any questions about the content of this update or about implications for your employees, please contact us. We are pleased to assist public and private employers with all accommodation issues.

This update is provided for informational purposes only and should not be considered legal advice.

EEOC Will Now Accept Charges Under the Pregnant Workers Fairness Act

Effective June 27, 2023, the EEOC will accept charges under the Pregnant Workers Fairness Act (“PWFA”). The PWFA offers protections for employees experiencing pregnancy, childbirth, or related medical conditions. In particular, the PWFA mandates that employers with fifteen (15) or more employees grant eligible employees “reasonable accommodations” unless doing so would impose an “undue hardship.” The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations, including additional breaktime to use the bathroom; seating; closer parking; and appropriately sized uniforms and safety apparel.

Importantly, the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. Massachusetts had already passed the Massachusetts Pregnant Workers Fairness Act, which amended G.L. 151B, § 4 to prohibit discrimination in employment on the basis of pregnancy and pregnancy-related conditions. Like the national PWFA, the Massachusetts law prohibits an employer from denying a reasonable accommodation for an employee’s pregnancy or condition related to pregnancy, unless the accommodation would impose an undue hardship.

If you have questions on the content of this update, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Student Denied Preliminary Injunction in “There Are Only Two Genders” T-Shirt Case

This month, the U.S. District Court for the District of Massachusetts declined to issue a preliminary injunction in L.M. v. Town of Middleborough, No. 1:23-cv-11111-IT, which would have precluded school officials from enforcing the school dress code to prohibit a student from wearing a t-shirt with the message “THERE ARE ONLY TWO GENDERS” while at school. In denying the student’s motion for a preliminary injunction, the Court concluded that the student, L.M., was unlikely to succeed on the merits of his claim that the defendants violated his rights under the First and Fourteenth Amendments.

The school district maintains a dress code which provides, in part, that clothing “must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.” In March of 2023, L.M., a twelve-year-old student, attended school wearing a t-shirt with the message “THERE ARE ONLY TWO GENDERS.” The school principal informed L.M. that students and staff complained that the shirt upset them, and that L.M. needed to remove the shirt to return to class. L.M. declined, and the principal called L.M.’s father who removed L.M. from school that day. Subsequently, L.M.’s counsel issued a letter to the superintendent asserting that the school had censored L.M. and explained that L.M. intended to wear the shirt to school again. The student wore the shirt to school a second time. On this second occasion, L.M. had covered the phrase “ONLY TWO” with a piece of tape with the word “CENSORED” written on it. Again, L.M. was asked to remove the shirt.

L.M., through his guardians, initiated an action under 42 U.S.C. §1983 asserting that the defendants’ application of the dress code to restrict L.M.’s t-shirt, but not other messages by students pertaining to sexual orientation, gender identity, and expression, amounted to impermissible viewpoint discrimination. L.M. argued that symbols relating to pride and diversity must be similarly prohibited in the school setting. L.M. also asserted that the dress code is vague and overbroad on its face. Prior to a hearing on the merits, L.M. sought a preliminary injunction, which was denied by the court.

The issuance of a preliminary injunction is an extraordinary remedy that is only granted if a plaintiff makes a clear showing of entitlement to such relief. In considering whether to grant a motion for preliminary injunction, the court considers four factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm to the moving party if the injunction is denied; (3) the balance of relevant impositions; and (4) the effect, if any, of the court’s ruling on the public interest. The court concluded that L.M. failed to demonstrate a likelihood of success on the merits. Citing Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the court reasoned that while students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, schools may impose reasonable limitations on speech. Specifically, the court relied on the statement in Tinker that a school may regulate speech that is in “collision with the rights of others to be secure and be let alone”. The record established that Massachusetts has identified trans and non-gender conforming students as a protected group and that school staff had received numerous complaints and concerns about the shirt.

The court ruled that the student was “unable to counter [the school district’s] showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. It determined that school administrators “were well within their discretion to conclude that the statement ‘THERE ARE ONLY TWO GENDERS’ may communicate that only two gender identities–male and female–are valid, and any others are invalid or nonexistent, and to conclude that students who identify differently, whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities.”

Several facts in the case bear mention. First, the student was not disciplined – he was merely barred from wearing the shirt in school. Second, he was allowed to wear other messaging apparel in school. Third, he was able to communicate freely on social media and in other contexts. Finally, the court’s decision – which is not a “final” decision in the case – does not address whether the result may have been any different under the Massachusetts student speech statute, G.L. c. 71, § 82.

The L.M. v. Town of Middleborough decision and the Supreme Court precedent relied upon is an important reminder that public schools may prohibit particular expressions of opinion, where those expressions are incompatible with the school’s obligations to provide a safe and secure educational environment for other students. The extent of this authority will depend on the specific facts and circumstances of each case and should be assessed carefully.

If you have questions on the content of this update, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.


Department of Education’s Office for Civil Rights Issues Guidance Regarding English Learner Students

School districts offer specialized or advanced educational programs for students that are designed to boost college access, degree attainment, and occupational skills. However, civil rights data collected by the Department of Education’s Office for Civil Rights (OCR) reveals that English Learner (EL) students are less likely to participate in such programs as compared to their non-EL classmates. Earlier this week, OCR issued guidance detailing a district’s obligation to ensure EL students are provided with a meaningful opportunity to participate in advanced course work and specialized programs.

OCR enforces Title VI of the Civil Rights Act, which prohibits discrimination based on race, color, or national origin in any program or activity that receives federal financial assistance from the Department of Education. To comply with this obligation, public school districts must take affirmative steps to ensure that EL students can meaningfully participate in educational programs and services. Consistent with that obligation, school districts must ensure EL students are not automatically screened out from participating in specialized or advanced programs because of their limited English proficiency. OCR’s guidance provides examples of practices that could potentially raise Title VI discrimination concerns, such as: (1) creating scheduling barriers; (2) using different selection criteria for students who are ELs; and (3) providing information about advanced programs exclusively to non-EL students. Additionally, the guidance notes that EL students remain entitled to appropriate language assistance services while participating in advanced or special programs.

OCR’s guidance is an important reminder to school districts that EL students must be provided with the opportunity for meaningful participation in advanced work and specialized programs.

If you have questions on the content of this update, please contact us. We are pleased to assist public schools in matters related to programming and Title VI compliance.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Court Holds Employers Can Sue Unions in Certain Cases for Property Damage Caused by Strike

On June 1, 2023, the United States Supreme Court issued a decision in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, No. 21-1449 (2023), which held that the National Labor Relations Act (“NLRA”) does not preempt state law tort claims for property damage caused by a labor strike when the striking union fails to take “reasonable precautions” to protect employer property. In doing so, the Supreme Court has created an obligation for striking unions to mitigate the risk of harm to employer property caused by a strike.

Glacier Northwest, Inc. (“Glacier”) is a company that delivers concrete to customers in Washington State using ready-mix trucks with rotating drums to prevent the concrete from hardening during transit. The International Brotherhood of Teamsters (“Union”) represents truck drivers employed by Glacier. After a collective bargaining agreement between Glacier and the Union expired, the Union organized a work stoppage on a morning it knew Glacier was mixing substantial amounts of concrete for delivery and directed striking drivers to refuse to finish deliveries in progress. Glacier was forced to initiate emergency maneuvers to offload concrete to avoid significant damage to its trucks. Still, all the concrete mixed that day hardened and became useless. Glacier sued the Union for damages in state court for common-law conversion and trespass to chattels, arguing that the Union intentionally destroyed the concrete. While federal law generally preempts state law when the two conflict, a previous decision of the Supreme Court – San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) – found that the NLRA preempts state law even when the two only arguably conflict. Consistent with that precedent, the Union moved to dismiss the claims on the basis that the federal law preempts the state law tort claims because the loss was incidental to a strike arguably protected by the NLRA. The Washington Supreme Court agreed with the Union and dismissed the case, and the Supreme Court granted the employer’s petition for certiorari.

In its decision the Supreme Court disagreed with the Washington court, concluding that the Union’s conduct in this case is not protected under the Garmon standard. The Supreme Court reasoned that the right to strike protected by the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to a work stoppage. The Court relied on the specific facts of the case and found it significant that the drivers prompted Glacier to mix the concrete by showing up for work and then abandoned their fully loaded trucks without notice to Glacier. Although the Court acknowledged that a strike is an economic weapon that is intended to cause financial harm, the drivers went beyond protected strike activity by taking affirmative steps to endanger Glacier’s property.

The Glacier Northwest decision makes it easier for private sector employers to pursue claims for property damaged because of a strike. The case puts unions on notice that cases involving foreseeable damage to employer property, particularly involving perishable products, can proceed on tort claims under state law despite the connection to a strike.

If you have questions on the content of this update, please contact us. We are pleased to assist employers in all matters related to labor relations and strikes.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Court to Consider Whether Public Officials May Constitutionally Block Social Media Users

The U.S. Supreme Court has agreed to review two apparently conflicting lower court decisions involving the question whether public officials are acting in their capacity as government officials when they block critics on their personal social media accounts. If so, this would implicate the First Amendment of the U.S. Constitution, which protects the right of free speech from governmental action. Social media websites like Twitter and Facebook are, for many, a principal source for learning about current events and engaging in debates. Unsurprisingly, public officials rely on social media both to promote their campaigns and to communicate with the public. Although social media can be a powerful tool for constituents to provide public officials with feedback, the rights of social media users to access and respond to posts by public officials on their private accounts have not been well defined. The issue is now before the Supreme Court in two different lawsuits: O’Connor-Ratcliff v. Garnier, decided by the U.S. Court of Appeals for the Ninth Circuit, and Lindke v. Freed, decided by the U.S. Court of Appeals for the Sixth Circuit.

In O’Connor-Ratcliff, two members of a southern California school board created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media pages to inform constituents about developments at the School District, to invite the public to Board meetings, to solicit input about Board decisions, and to communicate with parents about issues of safety. Two parents of children in the district frequently left critical comments, sometimes posting the same long criticisms. The board members eventually blocked the parents from their social media pages. According to the Court of Appeals, even assuming the board members were attempting to enforce a content-neutral rule against repetitive comments, the decision to block was not sufficiently tailored to a significant governmental interest. Thus, the court ruled that the actions of the board members constituted government action, and that they violated the parents’ First Amendment rights by blocking them from their social media pages.

In contrast the Court of Appeals in Lindke v. Freed concluded that a city manager did not violate a constituent’s First Amendment rights when he blocked the constituent from posting to his Facebook page. In that case, the constituent had posted a series of comments criticizing the city manager’s COVID-19 policies. The court explained that the city manager used his page to make a variety of posts both reflecting his personal life and updates about some of the administrative directives he issued as city manager. Moreover, he did not operate his page to fulfill any actual or apparent duty of his office, nor did he use his governmental authority to maintain it. Thus, the city manager was acting in his personal capacity – and there was no state action.

Until the issue is addressed there remains significant uncertainty as to whether public officials may block individuals from their private accounts when those accounts have been used to discuss official duties. While O’Connor-Ratcliff and Lindke remain pending, public officials are advised to proceed with caution when managing their private social media platforms.

We have attorneys with experience in a wide range of issues that arise under the First Amendment and under its analogue in the Massachusetts Declaration of Rights. We are happy to address any questions that our governmental clients may have.

This update is provided for informational purposes only and should not be considered legal advice.

Liz Valerio Recognized as Outstanding Massachusetts Woman by Massachusetts Association of School Committees

Valerio Dominello & Hillman congratulates Liz Valerio who was recognized as one of the “Women Who Made – and are Making – a Difference for MA Schools” as part of the MASC’s March Bulletin in honor of Women’s History Month. For the full bulletin, please click here.