VDH Announces New Elevations

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Valerio Dominello & Hillman, LLC is pleased to announce that effective January 1, 2024, attorneys Jennifer King, Eric McKenna, and Ann Marie Noonan have become Equity Members in the firm.

Jennifer King                         
Jennifer King                        Eric McKenna                   Ann Marie Noonan

VDH recognizes the valuable contributions that each of these attorneys has made to our clients and to our firm.

Bios for each attorney are available on our website, or through the links below the photos above.

Liz Valerio To Present at the MMA Annual Meeting Workshop Series

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On Friday, January 19, 2024 Liz will present at the Massachusetts Municipal Association (MMA) Annual Meeting. Liz will be hosting a collective bargaining workshop for the Massachusetts Municipal Human Resources (MMHR) on responding to grievances and navigating arbitration. For more information, please click here.

Rob Hillman to Present at MMA Newly Elected Training

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Rob Hillman will present at the Massachusetts Municipal Councillors’ Association (MMA) Newly Elected Training on Saturday, December 9, 2023. Rob will be presenting on general guidelines for council rules and code of conduct. For more information, please click here.

Nick Dominello To Present at 2023 Massachusetts Council of School Attorneys (“COSA”) Annual Conference

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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.

NLRB Broadens Standard for Determining Joint-Employer Status

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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.

Court Dismisses First Amendment Claim by Teacher Who Was Fired for Pre-Employment Social Media Activity

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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.

Three VDH Attorneys Named 2023 Massachusetts Super Lawyers and Rising Stars

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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.

Employer Engaged in Unlawful Discrimination by Refusing to Excuse an Employee From Overtime

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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.

NLRB Holds that Worker Advocacy for Non-Employees is Protected by Labor Law

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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.

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

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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.