Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts on 2017. Last week we covered New York and the DC Metro Area.  Now we turn to Massachusetts.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here.

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2016 Massachusetts Employment Law Year in Review

From case law interpreting one of, if not, the most employee-friendly independent contractor statute in the country to Beacon Hill’s efforts to pass non-competition agreement reform, Massachusetts is certainly no stranger to key developments in the labor and employment arena. This blog post highlights the 2016 case law and legislative efforts about which every Massachusetts employer should be aware, and provides insight over what to watch for as we move our way along through 2017 and beyond.

Continue Reading 2016 Massachusetts Employment Law Year In Review

The Second Circuit recently adopted the “Cat’s Paw” theory of liability in Title VII cases.  This was hardly a surprise as other Circuit Courts had done the same after the United States Supreme Court endorsed Cat’s Paw in a USERRA case.  But the Second Circuit went even further, allowing for the use of the Cat’s Paw argument in Title VII retaliation cases and in cases where a non-supervisory employee’s discriminatory actions lead the employer to take an adverse employment action against that employee’s co-worker.  Until now, Cat’s Paw had mostly focused on employer liability based on the actions of misbehaving supervisors in hostile work environment cases.  The decision puts additional pressure on employers to identify and eliminate discriminatory behavior in their workplaces. This post will briefly examine the Cat’s Paw doctrine and explain how the Second Circuit’s expanded its use in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (2d Cir. Aug. 29, 2016).

Continue Reading Negligent Employers May Be Held Liable For a Non-Supervisory Employee’s Discriminatory Actions Under “Cat’s Paw” Theory Says Second Circuit

Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts Independent Contractor Statute, M.G.L. c. 149, Section 148B, to couriers working for Federal Express and other same-day delivery companies.  As a result, these companies can continue to save billions of dollars each year in the costs associated with employees, such as overtime, health benefits, and workers compensation insurance

Continue Reading Same-Day Delivery Companies: 2; MA Independent Contractor Statute: 0. First Circuit Once Again Upholds Classification of Couriers as Independent Contractors

As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee.  Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation.  Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position.  In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result.  It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.

Continue Reading Clearly Defining the Essential Functions of the Job Can Make or Break An ADA Case

Both the Internal Revenue Code (the “Code”) and the Employee Retirement Income Security Act (“ERISA”) contain rules that aggregate trades and businesses under common control. For the most part, these rules are intended to prevent abuses that might result from breaking a venture up into separate entities. For example, a professional practice might want to split itself into two entities, one covering owners and the other covering rank-and-file employees, for the purpose of providing generous pension benefits to the former and not the latter. This approach is not allowed under the Code’s rules governing entities under common control.

Private equity arrangements too involve multiple, and in many cases, related entities that serve an important and legitimate purpose: to provide, among other things, access to capital and management resources to underperforming (or “portfolio”) companies. While the particulars of private equity arrangements vary widely from fund to fund, there is typically at the heart of each fund a limited partnership to which investment services are provided by a general partner. The limited partners provide the capital and the general partners provide, or provide access to, some combination of capital and managerial expertise.

A recent case, Sun Capital Partners III, LP, Sun Capital Partners III, QP LP, and Sun Capital Partners IV, LP v. New Eng. Teamsters and Trucking Indus. Pension Fund, No. 10-10921 DPW (D. Mass. Mar. 28, 2016) (“Sun Capital”), which deals with multi-employer pension liability under Title IV of ERISA, illustrates how things can go horribly wrong when the regulatory concerns that give rise to separate rules governing controlled groups clash with the practical exigencies of the private equity world.  Sun Capital upends much of the conventional wisdom about private equity investments in portfolio companies with multi-employer pension exposure. While it’s too soon to know for certain, this could prove to be a seminal case for private equity investments with consequences in areas far removed from pension liability.

This post examines the history, holding, and implications of Sun Capital.

Continue Reading Private Equity Funds, Controlled Groups, and Multi-Employer Plan Withdrawal Liability: The Lessons of Sun Capital Partners vs. New England Teamsters and Trucking Industry Pension Fund

At the end of last year, a federal court in Massachusetts found that a forum selection clause in an Iowa company’s standard form service-provider agreement did not apply to claims asserted under the Fair Labor Standards Act (FLSA) and the Massachusetts Wage Act (Wage Act).  The decision in Chebotnikov v. LimoLink, Inc., therefore compelled the company to litigate in a distant forum and in doing so, taught practitioners and other interested parties some important lessons about forum-selection clauses.

Continue Reading Chebotnikov v. LimoLink, Inc.: a Cautionary Tale Concerning the Use of Forum-Selection Clauses

In August, we wrote about the First Circuit Court of Appeals’ decision in Abril-Rivera v. Johnson, which affirmed a lower court ruling dismissing location-based discrimination and retaliation claims against FEMA.  Last week, however, the First Circuit withdrew that decision and issued an amended opinion in the case.  It is still a victory for employers, but one with slightly less import.

Continue Reading First Circuit Withdraws Earlier Opinion in Location-Based Discrimination Case; Issues Less Expansive Amended Opinion