Lots to talk about in the Labor & Employment world!  The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act.  The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed.   The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law.  In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits.  As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.

Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.

In a March 30, 2018 Bloomberg BNA article, Mintz Levin Employment, Labor and Benefits attorney Gauri Punjabi discusses Massachusetts’ new protections for pregnant workers and compares them with the existing federal requirements. For the full story, click here. This is an important development in Massachusetts, and one that we expect to expand to other jurisdictions. We’ve written on it here and will continue to track its development for our readers.

As 2017 starts to wind down, Massachusetts employers should start reviewing and revising their employment policies and practices so they are prepared for the Massachusetts Pregnant Workers Fairness Act (PWFA), which goes into effect on April 1, 2018 and requires employers with six or more employees to provide written notice to their employees of their right to be free from pregnancy discrimination.

Continue Reading MA Pregnant Workers Fairness Act Goes Into Effect April 1, 2018

What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.”  It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!

Continue Reading The Bubbler: September 6, 2017

Last month, a California state appellate court issued a decision that, as the dissent characterized, went “where no one has gone before.”  In Castro-Ramirez v. Dependable Highway Express, Inc., the court held that California’s Fair Employment and Housing Act (FEHA) – California’s anti-discrimination law – requires an employer to provide a reasonable accommodation to a nondisabled employee who associates with a disabled person.  This troubling and broad interpretation of the law, which effectively would import a caregiver accommodation requirement into the law, has certainly captured the attention of employers even outside this jurisdiction.

Continue Reading Does an Employer have to Accommodate a Nondisabled Employee Because of Another’s Disability? Yes, Says One California State Appellate Court

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

New York Governor Andrew Cuomo recently signed a series of bills entitled the “Women’s Equality Agenda” that significantly amend the State’s equal pay, sex discrimination, harassment and other laws to provide additional protections for women in and outside the workplace. Among other changes, the amendments broaden the definition of “equal work” for equal pay, add “familial” status as a protected class, require employers to accommodate pregnant workers, authorize treble damages for willful violations, provide sex discrimination plaintiffs with a new right to attorneys’ fees and apply the law’s prohibition on sexual harassment to all employers regardless of size.  The amendments, which we briefly summarize below, take effect on January 19, 2016.

Continue Reading New York State Employers Face Strict New Equal Pay and Sex Discrimination Laws

I was quoted in a Law360 article entitled High Court UPS Ruling Means Changes to EEOC Guidance, in which I comment on the significance (or lack thereof) of the U.S. Supreme Court’s Young v. UPS decision where it introduced a new “significant burden” standard in pregnancy discrimination cases. The article also outlines the decision’s discussion of the EEOC’s updated pregnancy discrimination guidelines.

The U.S. Supreme Court vacated a Fourth Circuit decision Wednesday, reviving a pregnancy bias case against the United Parcel Service brought by a former delivery driver who was denied a light-duty work accommodation while pregnant. In doing so, the Court for the first time applied the well-known McDonnell-Douglas burden shifting framework to these types of pregnancy discrimination cases. However, this case may have limited impact because Congress has since amended federal discrimination laws to make pregnancy-related accommodations much more likely and because states and other locales have begun to pass laws explicitly mandating pregnancy accommodations.

Continue Reading U.S. Supreme Court Revives Suit Against UPS, Extending McDonnell-Douglas Burden Shifting Framework to Pregnancy Discrimination Cases