Boston Employment Lawyer Blog

The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that "an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA" (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

The MCAD's long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman's career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

The Family and Medical Leave Act experienced much needed changes in 2008. Congress amended the Family and Medical Leave Act (FMLA) earlier in the year to afford employees two new types of leave. First, employees may take 26 weeks of leave in a single 12 month period to care for an injured or ill servicemember. This provision only applies where the servicemember is the employee's spouse, child or parent, or when the employee is the servicemember's next of kin. Second, employees may take 12 weeks of exigency leave where a family member is on active duty or is notified of a call to active duty status. The latter does not take effect until the Department of Labor (DOL) issues final regulations. The DOL, however, is encouraging employers to offer exigency leave immediately.

Wage and hour violations will be taken seriously in Massachusetts. Bill S.1059 proposed that treble damages must be awarded to plaintiffs who prevail in wage and hour lawsuits. On April 14, 2008, the bill was enacted into law. The new law essentially reverses the Supreme Judicial Court's ruling in Wiedmann v. The Bradford Group, Inc., which held that treble damages should only be awarded where the employer’s conduct was “outrageous, because of [its] evil motive or [its] reckless indifference to the rights of others.”

S.1059's enactment followed an interesting course. The Massachusetts Legislature initially submitted the bill to Governor Deval Patrick in February 2008. Governor Patrick returned the bill without signature and urged that certain exceptions be provided, which the Legislature rejected. Governor Patrick ultimately declined to veto S.1059.

The new law states that employees who prevail in court “shall be awarded triple damages, as liquidated damages, for any loss of wages and other benefits.” The treble damages provision applies to a host of wage and hour violations:

• Payment of wages, including commissions and vacation pay
• Overtime pay for nonexempt employees
• Minimum wages
• Improper deductions
• Misclassification of employees as independent contractors
• Tip pool sharing
• Retaliation for asserting wage complaints

Attorney Philip Gordon, Managing Partner of Gordon Law Group, first proposed S.1059. His efforts proved instrumental in its passage. To read more about mandatory treble damages in Massachusetts, please visit Forbes' article entitled, Massachusetts Passes Bill Restoring Triple Damages for Non-Payment of Wages.

In 1996, civil rights advocates established Equal Pay Day to acknowledge the pay gap between genders in which female employees earn approximately 75% of the wages of their male counterparts. Ensuring equal pay across genders continues to be a struggle. Numerous lawsuits have been brought on behalf of women throughout the United States who, despite performing the same work as their male counterparts, are paid substantially less. In December 2007, for example, the Ninth Circuit affirmed class action certification in Dukes v. Wal-Mart, which seeks redress for approximately 1.6 million current and former female Wal-Mart employees consistently passed up for promotions and salary increases that went to lesser qualified males (See Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart).

Perhaps the most important suit to-date has been the United States Supreme Court's May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co., which signifies a near-fatal blow to an employee's right to seek redress for pay discrimination. Lilly Ledbetter worked at Goodyear for 19 years before realizing she was being paid significantly less than every single one of her male counterparts. Although a jury agreed that Ms. Ledbetter had been paid unfairly, the Supreme Court reversed on the basis that her claim was time-barred by Title VII’s 180 day limitations period. For a more detailed discussion about the Ledbetter case, please visit: Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

To undo the harsh effects created by the Ledbetter decision, Senator Edward Kennedy (D-Mass) proposed the Fair Pay Restoration Act, which would re-establish the long-standing rule that each discriminatory paycheck constitutes a new act of discrimination and re-starts the 180 day statute of limitations clock.

In July 2007, the U.S. House of Representatives passed the Fair Pay Restoration Act by a vote of 225 to 1999. Unfortunately, the White House recently threatened to veto the bill in an effort to keep the Ledbetter decision as the status quo. This will likely be a talking point in the 2008 Presidential Race. While most Democrats support the bill, most Republicans oppose the legislation. The likely Republican nominee, Arizona Senator John McCain, opposes the Fair Pay Restoration Act:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems. This is government playing a much, much greater role in the business of a private enterprise system.

For more information on this issue please visit the Washington Post's article entitled, White House Threatens to Veto Discrimination Bill.

The Family and Medical Leave Act (FMLA) may undergo a shake up. The United States Department of Labor (DOL) has proposed regulatory changes to the FMLA. The changes, which are 500 pages long and have a 60 day comment period, make significant modifications to the FMLA. A sampling include:

Serious health condition: The definition of "serious health condition" would be substantially revised to require two or more treatments within a 30 day calendar period. In addition, to qualify as a chronic condition, an employee would be required to see a physician for the particular condition at least two times each a year.

Medical Certification: An employee's burden to provide medical certification would be set higher, which allows an employer to dig deeper into an employee's medical file, raising privacy concerns.

Notification: The notification period that employers are required to provide would be watered down. Under the proposed changes, employers will be given five days, versus the current requirement of two days, to provide employees with notice of FMLA eligibility.

The changes, which were initiated by President George W. Bush, are not employee friendly. Senator Hillary Clinton's campaign issued the following Press Release:

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

We will keep you posted on what the 60 day comment period yields.

The Houston Chronicle ran an Editorial entitled, Pay Stub, which urges the Senate to pass the Fair Pay Restoration Act to ensure equal pay across genders. We wrote about the Act in a post on January 30, 2008 entitled, Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008.

The Act would essentially nullify the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which sets a strict deadline for filing actions based on equal pay. Under the Supreme Court's ruling, the statute of limitations in such actions starts to run when an employee first begins to receive unequal pay, even if the employee is completely unaware of the employer's discriminatory pay practice. As the Editorial points out, the ruling panders to the corporate interest:

[I]t's a disaster for employees. The reality of the work environment, as almost any employee knows, is that it is difficult to know how much money any individual worker makes. In fact, companies typically discourage employees from discussing pay issues in the workplace at all. Anyone receiving discriminatory wages will be highly unlikely to find out in a timely manner.

To read more about the Ledbetter decision, please visit our January 31, 2008 post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

Senator Edward Kennedy (D-Mass) has proposed two new, much-necessary bills. The first, called the Fair Pay Restoration Act, would essentially undo the harsh effects created by the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which held that the 180 day statute of limitations deadline for filing discrimination actions starts to run when a worker first begins to receive unequal pay, instead of when the employee actually becomes aware that his or her pay is discriminatory. We wrote about the Ledbetter decision on December 31, 2008 in a post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender. Senator Kennedy's bill would make clear that the statute of limitations clock starts to run after the employee becomes aware of discrimination.

Senator Kennedy’s second bill, the Civil Rights Act of 2008, would undo more bad Supreme Court precedent as well. Among other things, the bill would reverse the 2001 Supreme Court decision in Alexander v. Sandoval, which held that individuals could not challenge federally-funded programs on the basis of discriminatory effect, but must rather meet the heavy burden of proving discriminatory intent.

The New York Times today featured an editorial on these two bills entitled, Restoring Civil Rights.

Massachusetts' Criminal Offender Record Information laws should expect an overhaul in 2008. Among Governor Deval Patrick's initiatives is a push to assist individuals with criminal records with finding jobs and preventing workplace discrimination. The Massachusetts Bar Association (MBA) has been particularly outspoken about the need for CORI reform. Current MBA President, David White, discussed the hidden job discrimination with which this group must contend in his President's Message entitled, Criminal reforms are long overdue.

Under Governor Deval Patrick's recent proposed Executive Order (below), the Massachusetts Commission Against Discrimination will be responsible for adopting regulations "that prohibit an employer from rejecting or discharging a qualified person with a criminal record because of the mere existence of the record."

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