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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Back to Square One at the NLRB

The National Labor Relations Board (NLRB) is left wondering what is going to happen after the Supreme Court invalidated three appointments by President Obama.

On January 4, 2012, President Obama made three NLRB member recess appointments. The United States’ Constitution has a clause that allows the President to make appointments without Senate approval when the Senate is in recess. Therefore, when the Senate went into recess in 2012 and there were three vacancies on the National Labor Relations Board, President Obama decided to appoint new members to fill the empty seats. However, the Supreme Court has reasoned that these appointments are invalid because the Senate was not truly in a “recess” when it did not meet from January 3-6, 2012. The Opinion states, “Three days is too short a time to bring a recess within the scope of the Clause.”

Now that these appointments have been deemed invalid by the highest Court, the NLRB is scrambling to determine what the future holds for the approximately 436 decisions made during that time. Notably, one decision that is now in question changed the workplace landscape by protecting workers from being fired for complaining about their employment on social media. However, while all cases are now invalid as only two properly-appointed members of the five-member board were in attendance (at least three valid members would need to be in attendance to allow the decisions to stand), it is unclear if the cases will be decided the same way if and when they are reconsidered.

If you have any questions regarding the National Labor Relations Board and their decisions, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Massachusetts Governor Signs New Law Increasing Minimum Wage and Reforming Unemployment Insurance System

This morning Governor Deval Patrick signed a bill, previously discussed here, into law that will raise the minimum wage in Massachusetts gradually from $8 per hour to $11 per hour by 2017 and will make changes designed to stabilize unemployment taxes. This bill also increases the minimum wage for tipped employees from $2.63 to $3.75 by 2017.

The first change we will see is in January 2015 when the minimum wage will increase to $9 per hour and the tipped employee minimum wage will increase to $3 per hour.

In 2016, the minimum wage will increase to $10 per hour and the tipped minimum wage will increase to $3.35 per hour. The final scheduled increase will be to $11 per hour in 2017 and $3.75 per hour for tipped employees. After 2017, the minimum wage will increase every year at the same rate as the consumer price index.

In addition to increasing the minimum wage, this new law will also freeze unemployment insurance rates for employers for three years and will extend the period the Department of Unemployment Assistance reviews an employer’s usage of unemployment insurance benefits from one to three years.

If you have any questions regarding the minimum wage or other wage and hour law issues, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Connecticut Makes Employer-Friendly Changes to Paid Sick Leave Statute

In 2012, Connecticut became the first state to mandate employers to provide paid sick leave to their employees. Under the current legislation, any employer with 50 or more employees in Connecticut are required to provide 40 hours of paid sick leave per calendar year to non-exempt “service workers.” “Service workers” are specifically identified in the statute as employees engaged primarily in an occupation within one of the occupation code numbers and titles, as defined by the federal Bureau of Labor Statistics Standard Occupational Classification system, and who are paid on an hourly basis or are otherwise not exempt from the federal Fair Labor Standards Act (FLSA) minimum wage and overtime requirements. Each service worker accrues one hour of paid sick leave for every 40 hours worked and employees may accrue up to a maximum of 40 hours of such leave per calendar year, which may be carried over from one year to the next if unused.

Employers should be aware of a few important changes to Connecticut’s Paid Sick Leave Act, which will go into effect on January 1, 2015. Under the current law, an employer must pay sick leave to employees if it employs 50 or more employees during any quarter during the previous calendar year. The new act will streamline this eligibility requirement by requiring employers to determine if they meet the 50-employee threshold based on the number of employees on payroll during the week of October 1 the previous year. This amendment will have a positive impact on employers that experience seasonal fluctuations in their workforce, but otherwise would not meet the 50-employee threshold during the majority of the calendar year.

It is worth noting that the amendments also include a penalty provision for any employer who attempts to avoid meeting the 50-employee threshold by temporarily transferring employees from one location to another outside of Connecticut or dismissing employees before October 1. However, neither the current law nor the new amendment provide workers with a private right of action to sue for violations of this law, and instead only allow for workers to file a complaint with the Connecticut Department of Labor. In order to avoid a perception of impropriety, employers should carefully document explanations for any personnel changes that might result in a fall in payroll to below 50 employees.

Additionally, the amendments will allow for some flexibility for employers in determining the timeframe for accruing paid sick leave. Under the current law, employers must pay qualifying employees 1 hour of sick leave for every 40 hours worked during the calendar year, beginning January 1. However, the new legislation allows employers to start the benefit year on any date the employer uses to calculate employee benefits, rather than limiting employers to a January 1 start date. This will allow employers to streamline their benefit packages, with all benefits beginning on the same start date.

Finally, employers should be aware that the amendment will expand sick leave pay to cover radiologic technologists, who were not previously included on the list of service workers who qualify for paid sick leave.

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

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New Proposed Policy About Who is Family Under the Family and Medical Leave Act

The Department of Labor recently announced a proposal to extend protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages across the country. The proposal came in light of the United States Supreme Court’s decision in U.S. v. Windsor, which struck down a provision under the Defense of Marriage Act (DOMA), which narrowly interpreted “marriage” and “spouse” only in the context of opposite-sex couples.

Under current federal law, the definition of “spouse” only applies to same-sex couples residing in states which recognize same-sex marriages. The proposed change would amend the definition of “spouse” under FMLA to allow all eligible employees in legal same-sex marriages to take FMLA leave to care for a spouse or relative regardless of which state the employee resides.

In a nutshell, FMLA protections will not be based on the law of the state where the employee resides, but rather on the law of the state where the marriage took place. For example, if an employee got married in Massachusetts but currently resides in Georgia, a state which does not recognize same-sex marriages, under the current proposal, he or she would be eligible to take FMLA leave to care for his or her spouse.

Once this proposal is finalized, employers should review their FMLA policies and procedures to ensure compliance with these changes in the law. If you have any questions regarding your obligations under FMLA please contact any of the attorneys at Royal LLP at (413) 586-2288.

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One Last Stop Before the Minimum Wage Increases

The Massachusetts House of Representatives and the Massachusetts Senate have both passed a bill that would raise the state’s minimum wage to $11 an hour by 2017. The bill is currently sitting on Governor Duval Patrick’s desk waiting for his signature. If the Governor signs this bill into law, the new minimum wage for non-tipped employees will be $9 an hour on January 1, 2015 and the minimum wage for tipped employees will increase from $2.63 an hour to $3.75 an hour.

If you have any questions regarding wage and hour law, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Beware Acting on Complaints without Proper Investigation

The United States Court of Appeals for the First Circuit recently held in Valazquez-Perez v. Developers Diversified Realty corp. that an employer can be liable for sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) for terminating an employee because of criticisms of a spurned co-worker intent on revenge, even though the employee was not the Plaintiff’s supervisor.

According to the plaintiff in this case, he and a female co-worker enjoyed a flirtatious working relationship for almost a year. However, when the co-worker attempted to initiate a romantic relationship during a business trip, the plaintiff rejected her advances. At this time the co-worker began to harass him, threaten to have him fired, send angry and suggestive emails, criticize him to his supervisors, and provided a detailed memorandum of her complaints and recommendation that he be terminated to company officials. During this time, the plaintiff complained about his co-worker’s actions to his supervisor who responded by instructing him to send her a “conciliatory email” because if he did not she was going to get him terminated. The plaintiff’s supervisor also jokingly suggested that the plaintiff should have sex with the jilted co-worker. Soon after, the plaintiff was terminated for absenteeism, failure to report, and unsatisfactory performance.

The plaintiff filed a lawsuit alleging sex discrimination and hostile work environment in violation of Title VII. The Federal District Court granted summary judgment against the plaintiff and he appealed. The First Circuit found that the employer could be liable under Title VII for allowing the female co-worker’s discriminatory acts to cause the plaintiff’s termination. The First Circuit stated an employer “should be liable if it fires the victim based on complaints that it knew (or reasonably should have known) were the product of discriminatory animus.”

This case serves as a reminder to employers to carefully investigate all claims by employees before taking adverse action to ensure that discriminatory animus doesn’t impact an employer’s decision. To prevent similar claims employers should properly investigate all complaints and properly train all supervisors in how to handle employee complaints.

If you have any questions regarding sex discrimination and hostile work environment harassment, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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