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 “35^th 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 “85^th 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.

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.

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.

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.

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.