On Friday, December 8, 2023 Nick will present at the COSA Annual Conference at the UMass Club in Boston. Nick will discuss updates and trends in collective bargaining. For more information, please click here.
On October 27, 2023, the National Labor Relations Board (“NLRB”) published a final rule that changed the standard for determining whether two or more entities may be classified as joint-employers for purposes of the National Labor Relations Act. The final rule broadened the standard to include more employers than would have previously been classified as joint-employers under the final rule published in 2020. The new rule is expected to take effect on December 26, 2023.
The 2020 final rule set a standard under which joint-employer status was found where an employer possessed and actually exercised substantial direct and immediate control over employees’ essential terms and conditions of employment. In contrast, under the new standard, an entity may be a joint-employer if it has an employment relationship with the employees and shares or codetermines one or more of the employees’ essential terms and conditions of employment. Thus, actual and direct control is no longer needed to find joint-employer status, which can now be found based on reserved joint control, indirect control, or control that is limited and routine.
The NLRB’s new rule is more employee friendly than its previous rule because it broadens the pool of employers subject to joint-employer status. Once classified as a joint-employer, an entity is obligated to bargain over the terms and conditions of employment that it controls as well as other mandatory subjects of bargaining that it exercises the authority to control. Additionally, joint-employer status may subject an entity to joint and several liability for unfair labor practices.
This new standard is important because it can potentially open an employer to liability and create new obligations to bargain. Employers should thus understand how this new standard applies to their situation before it takes effect on December 26th and, if this standard changes their status, should be prepared to assume the full implications of joint-employer status.
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 issues related to joint-employer status.
This update is provided for informational purposes only and should not be considered legal advice.
On September 25, 2023, the United States District Court for the District of Massachusetts issued a decision in MacRae v. Mattos, No. 21-cv-11917-DJC, granting summary judgment in favor of the Hanover Public Schools (the “District”) and two District administrators who were alleged to have retaliated against a teacher for exercising her First Amendment rights when they dismissed her.
Prior to becoming employed by the District, MacRae operated a TikTok account. Using that account, MacRae liked, shared, posted or reposted six memes that contained themes of homophobia, transphobia, and racism. In May, MacRae sought election to the Bourne School Committee. On May 17, 2021, the day of the election, MacRae posted a video to her TikTok account expressing her view that critical race theory should not be taught in public schools and that students should not be “taught that they can choose whether they want to be a girl or a boy.” MacRae was elected to the Bourne School Committee. Three months later MacRae was hired as a teacher with the District. On the same day, the Bourne School Committee received a complaint regarding her social media posts. After the Bourne School Committee made a public statement denouncing MacRae’s social media activity, a local newspaper published an article about MacRae’s posts. As a result of the news article, the District became aware of MacRae’s prior social media activity and placed her on paid administrative leave pending an investigation. Through its investigation, the District discovered the memes associated with MacRae’s TikTok account. The District terminated MacRae because her social media posts conflicted with the District’s values and continuing her employment would have a significant negative impact on student learning.
MacRae’s lawsuit alleged unlawful retaliation for MacRae’s pre-employment speech, which she claimed was protected by the First Amendment. On motion by the defendants the court entered a summary judgment dismissing MacRae’s lawsuit.
The District Court applied the three pronged test used by the Court of Appeals in the First Circuit to evaluate First Amendment claims by public employees, which asks: (1) whether the employee spoke as a citizen on a matter of public concern; (2) whether the interests of the employee in commenting upon matters of public concern outweigh the interests of the public employer in promoting the efficiency of its services; and (3) whether the employee has shown that their protected expression was a substantial or motivating factor in the adverse employment decision. The court rejected MacRae’s argument that this framework should not apply because her speech occurred before she was hired by the District. The court then applied the three-part test; ruled that MacRae had satisfied the first and third elements; but decided that the undisputed facts established that her speech did not outweigh the District’s core interests in preventing disruption of its educational environment for students based on her comments.
Observing that the publicity given by the media to MacRae’s posts had been extensive, the court noted that the potential for disruption in the District’s schools was greater because of this coverage. The court also used specific testimony by three teachers that MacRae’s posts – especially those regarding transgender students – could make students feel “unsafe, unwelcome, or otherwise distracted from learning.” The court added that several of her comments were “in conflict with the District’s stated mission.” Focusing on the District’s interests in preventing disruption caused by MacRae’s speech, the court stated that “[t]he limited evidence of actual disruption does not preclude summary judgment” because “[s]chool administrators should not be discouraged from taking action to minimize disruption to student learning.” It added that the District’s teachers “were not merely speculating about the potential disruption” since “MacRae’s same speech had caused considerable controversy in Bourne.”
This decision is an important application to the school context of the general rules regarding the First Amendment rights of public employees. The outcome was determined on the basis of the specific facts in the case. Because this is a complicated area of the law, school districts confronting these issues should seek advice of counsel before imposing discipline for an employee’s speech, particularly when it occurs on social media and outside the work day. We note that MacRae has filed a timely notice of appeal to the Court of Appeals, which will review the decision.
If you have questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to First Amendment compliance and the numerous related questions.
This update is provided for informational purposes only and should not be considered legal advice.
Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2023 and Jennifer F. King has been named a Massachusetts Rising Star. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.
On September 21, 2023, the Massachusetts Appeals Court issued a decision in Tufts Medical Center v. Dalexis, No. 22-P-15, which affirmed a Massachusetts Commission Against Discrimination (“MCAD”) decision holding that Tufts Medical Center (“Tufts”) engaged in unlawful discrimination on the basis of disability by refusing to excuse an inpatient nurse from overtime.
Dalexis worked as a “day/rotator” inpatient nurse on the day-evening shift at Tufts. Dalexis was diagnosed with rheumatoid arthritis and interstitial lung disease. After exhausting her protected leave, Tufts informed Dalexis that her nursing position would be filled and she would need to apply for open positions when she was ready to return. When Dalexis was cleared to return to work, she was not immediately selected to interview for open positions. When she was offered a vacant night-shift position, Dalexis declined the offer, explaining that night shifts exacerbated her medical condition. Subsequently, Dalexis’ doctor provided Tufts with a note explaining that Dalexis could not work overtime or night shifts. Based on that information, Tufts concluded that Dalexis was ineligible for an inpatient nurse position because the ability to work overtime was an essential function of the job.
Dalexis filed a complaint with MCAD alleging that Tufts discriminated against her on the basis of her disability. A Hearing Officer concluded that Tufts should have accommodated Dalexis by excusing her from overtime and night-shift work. In so holding, the Hearing Officer found that working overtime was not an essential function of Dalexis’ position. The Hearing Officer further held that Tufts failed to participate in an effective interactive process with her, resulting in her constructive discharge. The full Commission affirmed the Hearing Officer’s decision in its entirety and a judge of the Superior Court affirmed the Commission’s decision. Tufts then appealed.
On appeal, the Court explained that determining whether a particular job function is “essential” for purposes of G.L. c. 151B is intensely fact-based and requires individualized inquiry. Massachusetts courts have previously identified several nonexclusive factors to consider in determining whether a particular function is essential, including: (i) the employer’s judgment as to which functions are essential; (ii) written job descriptions as prepared before advertising the job; (iii) the amount of time spent on the job performing the function; (iv) the consequence of not requiring the incumbent to perform the function; (v) the terms of a collective bargaining agreement; (vi) the work experience of past incumbents in the job; and (iv) the current work experience of incumbents in similar positions. Considering the foregoing factors, the Appeals Court concluded overtime was not an essential function of the job of an inpatient nurse.
As a threshold matter, the applicable CBA did not mandate overtime. Moreover, while many nurses at Tufts worked overtime, some nurses performed as little as three hours of overtime during a full year, and more than five percent of Tufts nurses worked no overtime at all. Further, Dalexis herself had previously been granted an accommodation exempting her from overtime. Accordingly, the Appeals Court discerned no cause to disturb the judgment of the Superior Court affirming the MCAD Decision.
Importantly, the Court noted that overtime can be an essential function of a job. However, the fact that overtime has been found to be an essential function in certain settings does not compel that conclusion in all circumstances. The Tufts Medical Center decision is an important reminder that the determination of whether a particular function amounts to an “essential function” of a job is a fact specific inquiry and cases involving overtime work can pose a particular challenge in applying the applicable analytical framework.
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 issues pertaining to reasonable accommodations.
This update is provided for informational purposes only and should not be considered legal advice.
On August 26, 2023, the National Labor Relations Board (“NLRB”) issued a decision and order in American Federation for Children, Inc and Sarah Rayborn, 28-CA-246878 and 28-CA-262471, holding that an employee who elicited support from her colleagues for an ex-employee had engaged in action protected by the National Labor Relations Act (“NLRA”). In doing so, the Board overturned its 2019 ruling in Amnesty International, 368 NLRB No. 112 (2019) and expanded the scope of protected concerted activity under Section 7 of the NLRA.
American Federation for Children (“AFC”) is a nonprofit that advocates for school choice. The Charging Party, Sarah Rayborn, was an employee of AFC who was allegedly pressured to resign after she advocated among her coworkers and supervisors for AFC to rehire a former colleague who had lost her eligibility to work in the United States due to her immigration status. Even though AFC sponsored the former employee for a work permit so that she could be reemployed and held a position open for her, Rayborn believed that new management did not support the former employee’s rehire and began raising concerns to colleagues and supervisors. After Rayborn indicated to her colleagues that she believed the new supervisor was racist, AFC sought her resignation.
Section 7 of the NLRA gives employees the right to “engage in. . . concerted activities for the purpose of . . . mutual aid or protection.” In other words, to be protected under Section 7, activity must have two elements: (1) the employee’s activity must be “concerted” and (2) it must be for the mutual aid or protection of the employees. The NLRB’s previous decision, Amnesty International, held that activity advocating solely for non-employees does not satisfy the second element of this test and, therefore, is not protected. Applying this precedent, the Administrative Law Judge (“ALJ”) determined that the former employee was not a statutory employee and, consequently, Rayborn had not engaged in protected concerted activity.
However, the NLRB reversed the ALJ’s decision, holding that the former employee was a statutory employee. The NLRB further held that even if the former employee were not a statutory employee, Rayborn’s actions were still protected. The NLRB explained that where one employee comes to the aid of a worker who is not a statutory employee, that activity can still be protected under Section 7, because an employee may still be furthering their own interest when they advocate for a non-employee. Moving forward, the relevant question in cases like this one is whether, in helping non-statutory employees, employees potentially aid and protect themselves.
The American Federation for Children decision is important for employers to understand because it establishes that employees’ advocacy for non-employees may be protected by labor law.
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 labor law issues.
This update is provided for informational purposes only and should not be considered legal advice.
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.
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.
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.
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.
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