Federal Contractors and Employees to be LGBT Discrimination Free

Among the flood of executive orders coming from the White House recently, is one protecting lesbian, gay, bisexual, and transgender federal contractors and employees.  Yesterday, President Obama signed an executive order that protects federal contractors from discrimination based on sexual orientation or gender identity and federal employees from discrimination based on gender identity.  (Federal employees have been protected from discrimination based on sexual orientation since President Clinton’s executive order in 1998 seen here.)

President Johnson first signed an executive order in 1965 to protect federal contractors from discrimination.  Then in 2002, President George W. Bush added a religious exception to that order which allowed religious organizations to discriminate based on their religious beliefs.  Notably, the most recent executive order does not provide any such religious exemption.

We should expect to see regulations from the Secretary of Labor within three months to facilitate the implementation of this order.

If you have any questions regarding the discrimination based on sexual orientation or gender identity, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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The Affordable Care Act: Upcoming Responsibilities for Employers

For the past few years it seems you could not go a single day without hearing about Obamacare or the Affordable Care Act (as it is formally known). Although the conversations have died down a bit, the Affordable Care Act (ACA) is still bringing changes. Of interest to employers are the upcoming changes required for compliance with the ACA.

One change necessary for compliance is under the Employer Shared Responsibility provision of the ACA. Specifically, employers with 100 or more “full-time” employees will soon (at the beginning of 2015) need to offer health coverage to at least 70 percent of their employees in order to avoid fines. At the beginning of 2016 this percentage of health covered employees will increase to 95 percent for large employers, and companies with 50-100 “full-time” employees will need to offer coverage for at least 70 percent of their workforce to avoid penalties.

The law has outlined two methods of determining how many “full-time” employees an employer has. The first method is the Month by Month method; this method states that a “full-time” employee is any employee who averages at least 30 hours of service per week for a calendar month. “Service” includes paid time off for: vacation, holidays, illness, incapacity, disability, layoff, jury duty, military duty, or leave of absence. The second method of determining your number of “full-time” employees for the purpose of the ACA, is the Look-Back Measurement method. This method allows employers to determine their number of “full-time” employees by choosing a period of time within the past year (three months, six months, etc.) and counting backward, relying on the assumption that an employer will have roughly the same amount of employees from year to year.

To learn more about the Affordable Care Act and employer compliance, attend our seminar: “The 411 on the Affordable Care Act: What Every Employer Must Know and Do to Comply” on September 11, 2014.  Click here for more information.

If you have any questions regarding the Affordable Care Act and employer compliance, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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EEOC Issues New Guidance on Pregnancy Discrimination

This week, the Equal Employment Opportunity Commission (EEOC) released guidance on pregnancy discrimination, which is the EEOC’s first update on its position regarding this issue since 1983. This guidance has sparked criticism due to some of its controversial provisions. For example, the guidance prohibits employers from denying light duty work as an accommodation for pregnant workers. This very issue is currently pending before the U.S. Supreme Court.

Prior to the release of the EEOC guidance, the Supreme Court agreed to review Young v. United Parcel Services, a case which focuses on reasonable accommodations for pregnant workers. Peggy Young, a part-time UPS driver, commenced this lawsuit after her employer refused to assign her to light duty work in accordance with its policy. Per her medical provider, Young was restricted from lifting more than twenty pounds during her pregnancy. She claimed that UPS’s refusal to assign her light duty work was a violation of the Pregnancy Discrimination Act (PDA), which prohibits discrimination against employees on the basis of pregnancy, childbirth, or related medical conditions.

The UPS policy at the center of this legal battle is governed by a collective bargaining agreement, which reserves light duty work for employees with work-related injuries or those with disabilities cognizable under the Americans with Disabilities Act (ADA). Young was denied light duty work in accordance with the policy because she did not qualify for either category since the limitation caused by her pregnancy was neither work-related nor a disability cognizable under the ADA. Since the essential functions of her job as a part-time driver included the ability to lift packages weighing up to seventy pounds, Young was forced to go on medical leave and return after her baby was born.

The main issue before the Court is whether an employer who provides light duty work as an accommodation to non-pregnant workers must provide the same accommodation to pregnant workers.

The EEOC’s position on this issue appears to side with Young’s argument in this case; essentially, pregnant workers should not be denied light duty work based on the source of their limitation (i.e. pregnancy). Critics have noted that the EEOC’s position is, in certain aspects, contradictory to existing case law and not supported by the language of the PDA or the ADA. Others have expressed concerns about the EEOC’s bold attempt to release controversial guidance on a topic which is currently pending at the Supreme Court. It will be interesting to see whether the Supreme Court will follow the EEOC’s direction.

In a nutshell, employers should be mindful of this new guidance when handling requests by pregnant workers for reasonable accommodations. In addition, employers would be wise to consult with employment counsel to ensure that their policies are in compliance with the new EEOC guidance.

If you have any questions regarding the Pregnancy Discrimination Act, the Americans with Disability Act, or reasonable accommodations, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Will Massachusetts be the Second State to Grant Earned Sick Time to Employees?

Connecticut already has a paid sick leave law (read more here), but Massachusetts has only been considering a similar law for a few years now. In November, Massachusetts voters will have the option of deciding if we want to follow in Connecticut’s footsteps by voting on the ballot question seen here.

This proposed law would allow employees in Massachusetts to be able to earn and use up to forty hours of sick time each year. If the employer has eleven or more employees, this time will be paid by law, however; if the employer has less than eleven employees, the leave will be unpaid.

The employee earned “sick time” could be used by employees in three instances.
1. To care for employee, employee’s spouse, child, parent, or parent of spouse suffering from mental or physical illness, injury or medical condition, or
2. To attend routine medical appointments of employee, employee’s spouse, child, parent, or parent of spouse, or
3. To address any effects of domestic violence on employee or employee’s dependent child.

While employers would need to provide time off to employees in the above instances, if it has been earned (one hour earned for every 30 hours worked), the employer may require certification of the need for sick time if more than 24 hours of sick time is used consecutively. However, it is unclear how employers could enforce this requirement as the law prohibits employers from delaying payment for or taking of sick leave for lack of certification.

If you have any questions regarding employee leave, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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When an Employer May Punish Off-Duty Conduct

You may have heard about the Florida police officers who recently faced issues at work for their memberships in the Ku Klux Klan. One officer resigned and the other is facing disciplinary action and possibly termination. This has led many to wonder aloud, ”can they do this?”

Put simply, yes. There are occasions when an employer may punish or prohibit an employee’s off-duty conduct, but employers should be careful not to prohibit conduct that is protected by anti-discrimination laws.

One instance where it is allowable for an employer to manage an employee’s off-duty conduct is when there is an actual business loss to the employer attributable to the employee. An example of this, in addition to the one above, is in a case where a bus driver publically identified as a leader of his state’s branch of the Ku Klux Klan. After the bus company terminated the driver, the court determined that this discharge was allowed because a bus boycott would cause substantial harm to the company.

Additionally, an employee’s off-duty conduct may be controlled by an employer where this conduct makes the employee unable to report to work. For example, if an employee is arrested and punished with a jail sentence for assault, the employer may terminate the employee because being in jail would clearly prevent the employee from attending work. As such, the assault is not being punished by the employer; rather, the absence from work resulting from the arrest is being punished.

Finally, an employee’s off-duty conduct can be regulated by an employer when it creates an impediment to productivity. An example of this is an employee making unwanted advances toward a co-worker off the clock that lead to sexual harassment on-the-clock. Although the advances are taking place off-the-clock, the effect of them, along with on-the-clock behavior is interfering with the company’s business.

In order to prevent claims of wrongful termination, employers should contact employment counsel prior to disciplining an employee for off-duty conduct. In addition, employers should make sure their supervisors and managers are up-to-date on training regarding when employees should be disciplined.

If you have any questions regarding employee discipline, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Executive Order on Sexual Orientation Discrimination in the Workplace

Massachusetts currently protects employees from discrimination based on their sexual orientation, but most states currently do not. However, President Barak Obama may soon change that. It is expected that our President will soon sign an executive order barring federal government contractors from discriminating against lesbian, gay, bisexual, and transgender (“LGBT”) employees and job candidates.

Although recent efforts to enact LGBT anti-discrimination have been stalled in the House of Representatives, this executive order’s success and support may prompt renewed efforts at enacting the proposed Employment Non-Discrimination Act (ENDA). ENDA would prohibit employers with fifteen or more employees from discriminating against LGBT applicants and employees.

With this on the horizon, employers should pay close attention to the President’s order and its application. Also, employers should review and consider updating various policies (including employee handbook changes) that may be impacted. Such policies as equal employment opportunity, harassment, family and medical leave, and bereavement may be implicated. In addition, employers should also make sure their supervisors are being trained in recognizing and handling discrimination regardless of the basis in an effort to prevent claims.

If you have any questions regarding discrimination in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Liar, Liar, You’ll be Fired! No Protection on Facebook

Employee’s use of social media in the workplace continues to be a land of eggshells on which employers may walk.  However, The United States Supreme Court recently refused to review a Tenth Circuit decision granting summary judgment to an employer and in doing so allowed for the wisdom of that court to stand as guidance to other jurisdictions.  In Debord v. Mercy Health System of Kansas, Inc., an employee made several posts about her direct supervisor on Facebook by claiming he adds extra money to employee’s paychecks for un-worked hours if he likes them and saying that “he needs to keep his creapy [sic] hands to himself… just an all around d-bag!!”

Debord’s direct supervisor saw her posts on Facebook and immediately brought the issue to Human Resources.  The human resources director confronted Debord about the posts and on multiple occasions she denied posting them.  She stated that anyone could access her Facebook account from her cell phone and that she left the phone unattended at times throughout the day.  After denying making the posts three times, she then admitted to making the posts.  When Debord finally confessed she was suspended for one day without pay for “[f]ail[ing] to conduct [herself] in a manner consistent with a high degree of personal integrity and professionalism.”

The human resources director then specifically asked Debord about the “creepy hands” comment and stated that this comment concerned him greatly.  Debord stated that her supervisor would touch her and a lot of the women in the department to show them how cold his hands were.  The human resources director asked if Debord thought this was sexual harassment and she denied thinking so.  Regardless, Mercy’s risk manager investigated for any potential of sexual harassment.

During the investigation, Mercy’s risk manager interviewed Debord.  Debord denied making a sexual harassment complaint and declined when she was asked if she wanted to file a formal complaint.  Another female employee was interviewed and she denied any inappropriate conduct by the supervisor.

The supervisor was also investigated for overpaying certain employees, but this allegation was determined to be false.  Despite the human resources director informing Debord that he had all evidence that would show if overpayments were made, Debord still sent text messages to other employees accusing her supervisor of destroying such evidence.  Finally, Debord was terminated for disruption, inappropriate behavior, and dishonesty.  At this point Debord filed suit against her former employer for sex discrimination and retaliation.

The court granted summary judgment against Debord as Debord’s Facebook comments did not qualify as a legally protected complaint because they did not comply with the employer’s flexible system for reporting sexual harassment and the Facebook posts failed to provide notice to the employer.  Finally, the court noted, Debord was not terminated for her Facebook posts, but rather because of her dishonesty and disruption of the workplace.

While this case is a win for employers, social media is still a slippery topic in the employment context.  The best way to reduce your risks of claims is to review your social media policy often and with the assistance of employment counsel, as this area of the law continues to change rapidly.

If you have any questions regarding social media in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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What Does the Future Hold for Non-Compete Agreements in Massachusetts?

In April of last year, Governor Deval Patrick stated he would like to ban non-compete agreements in Massachusetts. Patrick suggests the elimination of non-compete agreements is feasible if done in conjunction with adopting the Uniform Trade Secrets Act (UTSA) which would protect confidential business information.

Over one year later, the Massachusetts Senate voted overwhelmingly for a compromise on employee non-compete agreements. The provisions, which passed 32-7 last week, would limit the duration of non-compete agreements to six months, prohibit the use of such agreements for hourly employees, and require that employers using these agreements present them to employees at the time a formal offer is made or at least five days before the employee’s start date. This amendment would also put in place the UTSA making Massachusetts the 49th state to adopt a version of that law.

Similar to the Senate, the House of Representatives is contemplating a compromise that would also limit the duration of non-compete agreements to six months and exempt most hourly employees from being subject to such agreements. In addition, this compromise includes a provision that would require the agreement to be deemed void in its entirety if any part of the agreement is determined to be unreasonable.

As the Senate’s and House’s bills include different language, the issue must be resolved in a conference committee. Also, as the legislative session ends at the end of July, we may see action very soon or will need to wait for this issue to be raised again in January.

If you have any questions regarding restrictive covenants, please contact any of the attorneys at Royal LLP at (413) 586-2288

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Supreme Court Outlines Affordable Care Act Exemptions for Religious Beliefs of Closely Held Businesses

Today, the United States Supreme Court ruled in Burwell v. Hobby Lobby Stores, et al. that certain for-profit closely-held businesses are not required to provide health insurance coverage for methods of contraception that violate the companies’ owners religious beliefs. This case came before the Supreme Court as a challenge to the Affordable Care Act’s (ACA) preventative care requirement mandating coverage of contraceptives in health insurance plans offered to employees. In this case, the companies’ owners were opposed to emergency contraceptives on religious grounds and argued that the ACA’s requirement violated their rights under the Religious Freedom Restoration Act (RFRA). The Court agreed and found that the government may not force such closely held businesses to pay for such coverage. The Court specified that the businesses that may take advantage of the protection of RFRA in this instance are those for-profit businesses that are owned only by a family, other closely allied individuals, or by a family trust who for religious reasons, object to paying employee coverage for contraceptives.

If owners of these closely held businesses object to paying for coverage of contraceptives for religious reasons, the insurer must bear the cost of contraceptive services instead, and provide the coverage to employees.

If you have any questions regarding the Affordable Care Act, please contact any of the attorneys at Royal LLP at (413) 586-2288

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A Hit to Unions, Right in the Purse

Unions took a hit today when the Supreme Court of the United States stated that in-home health care workers cannot be forced to pay dues to a union they do not wish to join. In Harris v. Quinn, a challenge was brought against the Illinois state requirement that public-sector employees pay dues to the unions who negotiate their contracts and represent them in grievances, even when the employees find the union distasteful.

This case gave the Supreme Court the opportunity to proclaim similar requirements as unconstitutional, but instead the Court chose to only address such requirements in regards to home health care workers. The Court stated that the workers in questions could not be required to pay union dues as they were not truly “full-fledged public employees” since they were hired and fired by individual patients and worked in private homes.

However, while the ruling was narrow, the implications are anything but. Now, in the 26 states that require public-sector workers to pay union dues, it is unclear whether such requirements will continue to be allowed. While proponents of required union dues say this decision went too far, others claim the decision did not go far enough. But the Court may have another chance at this question as early as next year in a case where California teachers are suing to avoid paying the mandated dues based on First Amendment grounds. This case is currently in the Ninth Circuit.

If you have any questions regarding unions and collective bargaining, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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