NLRB’s General Counsel Releases Updated Guidance on Employee Handbook Rules

On June 6, 2018, the National Labor Relations Board’s (Board) General Counsel, Peter Robb, sent a Memorandum to the Board’s regional offices providing guidance on the Board’s current position regarding employee handbook rules.  The General Counsel’s Memorandum comes after the Board’s decision last December in The Boeing Company, 365 NLRB No. 154 (2017), where it formulated to new rule to determine a workplace rule’s legality.  As set forth in that decision, the Board will balance a “rule’s negative impact on employees’ ability to exercise their Section 7 rights [with] the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.”

To provide “greater clarity and certainty to employees, employers, and unions” regarding the legality of work rules, the Board formulated three different categories of such rules:

  • Category 1: Rules that are generally lawful;
  • Category 2: Rules that warrant individualized scrutiny; and
  • Category 3: Rules that are unlawful.

Rules in Category 1 are generally lawful either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of Act rights; or (ii) the potential adverse impact on protected rights is outweighed by business justifications associated with the rule.  According to the General Counsel, the following rules will generally fall in Category 1:

  • Civility Rules (e.g., a rule prohibiting “[b]ehavior that is rude, condescending or otherwise socially unacceptable”);
  • No-photograph and no-recording rules;
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
  • Disruptive behavior rules;
  • Rules protecting confidential, proprietary, and customer information or documents;
  • Rules against defamation or misrepresentation;
  • Rules against using employer logos or intellectual property;
  • Rules requiring authorization to speak for the Company;
  • Rules banning disloyalty, nepotism, or self-enrichment.

Rules in Category 2 are not obviously lawful or unlawful and, therefore, need to be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the Act and, if so, whether any adverse impact on those rights is outweighed by legitimate justifications.  Examples of rules falling into Category 2 include:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;
  • Confidentiality rules broadly encompassing “employer business” or “employee information;”
  • Rules regarding disparagement or criticism of the employer;
  • Rules regulating use of the employer’s name;
  • Rules generally restricting speaking to the media or third parties;
  • Rules banning off-duty conduct that might harm the employer; and
  • Rules against making false or inaccurate statements.

Rules in Category 3 are generally unlawful because they prohibit or limit conduct protected by the Act, and the adverse impact on such rights outweighs any justifications for the rule.  Examples of rules in Category 3 include:

  • Confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • Rules against joining outside organizations or voting on matters concerning the employer.

In addition, and to the benefit of employers, the Board further noted that, to the extent there is an ambiguity in a workplace rule, such ambiguity should no longer be interpreted against the drafter.

Given the foregoing, Employers are well-advised to take the General Counsel’s Memorandum into consideration when drafting employee handbooks and other related policies.

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Massachusetts Ban-The-Box Law Undergoes An Update

As many of you know, in 2010, Massachusetts passed legislation which, in part, prohibits employers from including questions on job applications asking applicants to disclose their criminal history. This prohibition is often referred to as “banning-the-box.”  Notwithstanding this restriction, employers may inquire about an applicant’s criminal history, but must wait until later in the hiring process – after the initial job application – to do so.  However, employers that do seek to question applicants about their criminal history later down the line are prohibited from inquiring about:

  1. An arrest that did not result in a conviction;
  2. A first offense for certain misdemeanor convictions including disturbance of the peace, drunkenness, simple assault, minor traffic violations, disturbing the peace, affray, and speeding; and
  3. Misdemeanor convictions where the date of the conviction or completion of the incarceration stemming from the conviction occurred five (5) or more years before the date of the job application, unless the applicant was convicted of a crime during that 5-year period.

Notably, on April 13, 2018, Governor Baker signed An Act Relative to Criminal Justice Reform (the “Act”) that includes further restrictions on employers’ abilities to make criminal history inquiries. Specifically, the Act prohibits employers from inquiring into misdemeanor convictions where the date of the conviction or completion of the incarceration occurred three (3) or more years before the date of the job application – as opposed to the previous five or more year restriction on such inquiries – unless the individual was convicted of a crime during that 3-year period.

Furthermore, under the Act, employers are now prohibited from asking applicants about a criminal record, or anything related to a criminal record, that has been sealed or expunged.

Finally, if an employer intends to use a form to solicit information (after the initial job application) concerning an applicant’s prior arrests or convictions, it must include the following statement on the form:

“An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions.  An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

Similarly, if an employer inquires about an applicant’s criminal history during an interview, the employer should convey to the applicant that he/she is not required to disclose any prior arrests, criminal or juvenile court appearances or convictions that have been expunged.

Given the nuances regarding the questions an employer can ask an applicant about his/her criminal history during an interview, employers should consider simply not asking any criminal history-related questions during an interview. To the extent an employer seeks to ask an applicant about his/her criminal history, employers are well-advised to: (i) create a specific script of questions to ask and (ii) designate a specific individual from the organization who is responsible for asking such questions; proceeding in this regard will greatly reduce the risk of asking impermissible questions.

The Act’s provisions take effect on October 13, 2018.

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FLSA Amendment Eases Restrictions on Tip Pooling

On April 6, 2018, the U.S. Department of Labor, Wage and Hour Division (“WHD”) issued Field Assistance Bulletin No. 2018-3 in response to Congress’ amendment to Section 3(m) of the Fair Labor Standards Act (“FLSA”) with the Consolidated Appropriations Act, 2018 (the “Act”). The Act, passed in March 2018, prohibits employers from keeping tips received by their employees and states that the WHD’s prior regulations that barred certain tip pooling practices have no further force or effect.

As stated by the WHD, “given these developments, employers who pay the full FLSA minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped – such as cooks and dishwashers – to participate in tip pools.” Stated differently, as long as the tipped employees are paid at least the federal minimum wage, employers can require traditionally tipped employees to share their tips with traditionally non-tipped employees.  Notably, however, managers and supervisors are still prohibited by the FLSA from participating in tip pools.

Despite the change in the federal law, Massachusetts employers are prohibited from requiring or even permitting tip pools if any of the money is distributed to “any person who is not a wait staff employee, service employee, or service bartender.” See M.G.L. c. 149, § 152A.  The term “service employee” is defined by the statute to mean a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers.

Accordingly, despite the Consolidated Appropriations Act and guidance from the WHD, hospitality employers in Massachusetts are prohibited from allowing employees who are not customarily and regularly tipped (such as cooks and dishwashers) to participate in tip pools.

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Are You In Compliance with the Pregnant Workers Fairness Act That Went Into Effect April 1st?

If you have not taken steps to comply with the Pregnant Workers Fairness Act (“PWFA”), you are already in violation of the statutory mandate related to required postings.  Specifically, all employers with six or more employees were required to provide a notice as of April 1st to all employees (either in an Employee Handbook, stand-alone policy, or other written means) setting forth employee rights under the PWFA, including rights to be free from discrimination and to an accommodation.  In addition to this initial notice, employers are required to provide the same notice to all new employees at date of hire on a going-forward basis, as well as to any pregnant employee or employee with a pregnancy-related condition within 10 days of the employer being notified by the employee of the pregnancy or pregnancy-related condition, including but not limited to lactation or the need to express breast milk for a nursing child.

If you need any assistance in drafting an appropriate notice for distribution, please contact any member of Mirick O’Connell’s Labor, Employment & Employee Benefits Group.

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Attorney General’s Office Releases Guidance Interpreting an Act to Establish Pay Equity

On March 1, 2018, the Massachusetts Attorney General’s Office released guidance in the form of an “Overview and Frequently Asked Questions” (the “Guidance”) interpreting An Act to Establish Pay Equity, which goes into effect July 1, 2018.  A copy of the Attorney General’s Guidance can be found here.

Many of you will recall that, in August 2016, Governor Baker signed into law An Act to Establish Pay Equity which amends M.G.L. c. 149 s. 105A, the Massachusetts Equal Pay Act (“Equal Pay Act” or the “Act”), to strengthen the prohibition on discrimination in wages based on gender, and to ensure Massachusetts employees receive equal wages for comparable work.  The Equal Pay Act defines comparable work as work involving “substantially similar skill, effort and responsibility” and that is “performed under similar working conditions.”

Despite its equal pay mandate, the law permits employers, in certain circumstances, to establish variations in the payment of wages among employees. Such variations may only be based on:  seniority, merit, a system that “measures earnings by quantity or quality of production, sales, or revenue” (e.g., commission payments), the geographic location where a job is performed, education, training, or experience if such factors are reasonably related to the particular job, and/or travel (if the travel is a regular and necessary condition of the job).

The Act also prohibits employers from (i) screening applicants based on wage or salary history, (ii) seeking the salary history of an applicant (with two exceptions), and (iii) restricting employees from discussing their compensation with co-workers or colleagues. The Act creates an affirmative defense if, within the three previous years, the employer has completed a good faith self-evaluation of its pay practice that is reasonable in detail and scope and can demonstrate reasonable progress to eliminate pay differential based on gender.

The Guidance addresses several important aspects of the Equal Pay Act, including, among others, its applicability, the terms “comparable work” and “wages,” the prohibition on seeking salary history, and the affirmative defense afforded to employers.

Applicability

The Equal Pay Act applies to all “employees with a primary place of work in Massachusetts.”  An employee’s primary place of work is where the employee does most of his/her work for the employer.  The Guidance provides several examples illustrating the Equal Pay Act’s applicability.

Comparable Work

As noted above, for work to be comparable, it must involve “substantially similar skill, effort, and responsibility, and [be] performed under similar working conditions.”

  • Work is “substantially similar” if two employees’ skill, effort, and responsibility are “alike to a great or significant extent,  but are not necessarily identical or alike in all respects.”  The fact that two jobs may differ slightly in skill, effort and responsibility will not prevent two jobs from being classified as comparable.
  • “Skill” includes an employee’s “experience, training, education, and ability to perform the jobs.” An employee’s skill must be “measured in terms of the performance requirements of a job….”
  • “‘Effort’ refers to the amount of physical or mental exertion needed to perform a job.”
  • “‘Responsibility encompasses the degree of discretion or accountability involved in performing the essential functions of a job….”

Wages

Wages are defined broadly under the Equal Pay Act to include “all forms of remuneration for work performed, including commissions, bonuses, profit sharing, paid personal time off, vacation and holiday pay, expense accounts, car and gas allowances, retirement plans, insurance, and other benefits, whether paid directly to the employee or to a third-party on the employee’s behalf.” Although relevant for the determination of equal pay, the Guidance does not change the definition of “wages” for the purposes of the Payment of Wages law.

Prohibition on Seeking Salary History

With limited exceptions, employers (and agents acting on their behalf) are prohibited from seeking salary/wage history from prospective employees.  Employers can seek such information to confirm salary/wage history if the applicant volunteers his/her prior salary/wage history, or after the employer has made an offer of employment with compensation.

Notably, an employer is entitled to ask a prospective employee about his/her salary requirements or expectations.  The Guidance advises employers to proceed with caution and to frame this question in a manner that is not designed or intended to elicit the prospective employee’s salary/wage history.

In addition, multi-state employers are required to comply with the Equal Pay Act if there is a possibility that the prospective employee “will be chosen or assigned to work in Massachusetts (or have Massachusetts as their primary place of work)[.]…”

Affirmative Defense

The Equal Pay Act provides a complete defense to a claim if an employer has conducted a “good faith, reasonable self-evaluation of its pay practices within the previous three years and before an action is filed against it.”  According to the Guidance, an employer’s eligibility for the affirmative defense “turns on whether the self-evaluation is conducted in good faith and was reasonable in detail and scope and the employer must also show reasonable progress towards eliminating any unlawful gender-based wage differentials that its self-evaluation reveals.”

The Guidance considers a good-faith self-evaluation to be one the “employer conducts in a genuine attempt to identify unlawful pay disparities among employees performing comparable work.”  An employer’s good faith must apply to its analysis regarding which jobs are comparable, and to the pay differentials themselves.

A self-evaluation that is reasonable in detail and scope is likely going to be one that takes into account a reasonable number of jobs and employees, relevant and reasonably available information, and has a reasonably sophisticated analysis of potentially comparable jobs, employee compensation, and whether the employer is appropriately using the six permissible reasons for pay disparities.

Assuming the self-evaluation was done in good faith and was reasonable in detail and scope, the employer must still demonstrate that it has made reasonable progress to eliminate any pay disparities that were identified.  To make this showing, an employer will be required to specifically identify the steps it is taking to remedy the problem.

The Guidance includes a basic guide of the steps “employers should consider undertaking as part of a comprehensive self-evaluation.” The Guidance also includes a link to the Attorney General’s “Calculation Tool” to assist employers in the evaluation of comparable job groupings that have thirty (30) or fewer employees and a relatively simple pay structure.

If you have any questions about the Equal Pay Act and its interpreting Guidance, please contact a member of the Labor and Employment Group.

 

Our Keynote Speaker at our annual Labor, Employment, and Employee Benefits Seminar is Genevieve Nadeau, Chief of the Civil Rights Division for the Massachusetts Attorney General’s Office.  Ms. Nadeau is one of the architects of the Equal Pay Act’s Guidance.  Register today: 2018 Mirick O’Connell Labor, Employment and Employee Benefits Seminar . We hope to see you there!

 

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Violation of Sick Time Payout Policy Not a Wage Act Violation

The Massachusetts Wage Act, G.L. c. 149, §148, is in the news again, the subject of another noteworthy decision by the Massachusetts Supreme Judicial Court. Like the decision declining to extend personal liability to Board members and investors for Wage Act violations reported in an earlier post this year, the Court in Mui v. Massachusetts Port Authority again opted for a narrow interpretation of that important statute.

The Wage Act protects an employee’s right to receive earned wages and salary. These rights are enforced through strict treble damages remedies if prompt payment is not made.  The Act also provides for personal liability of upper management of the employer.

The Wage Act also protects accrued, but unused vacation pay due an employee under an oral or written agreement. Once vacation pay has been earned, it must be paid upon termination.  Failure to do so calls forth the treble damages penalty and potential personal liability.

The Wage Act, however, is silent about accrued, but unused sick pay.  MassPort had a policy, common in the public sector but rare in the private sector, whereby an employee was entitled to be paid a percentage of his unused sick time upon termination.  The plaintiff argued that this benefit was the equivalent of earned vacation time.  Because that benefit had been earned through his labors, the plaintiff argued that the important public policy rationale underlying the Wage Act protections should apply.  Treble damages should therefore be imposed to deter employers from depriving an employee of this earned benefit.

The Court refused to read such language into the Wage Act.  Adopting a strict construction of the statute, the Court found “no reason to conclude that the Legislature intended to include sick pay as ‘wages’ under the Wage Act.”  Because the Wage Act did not apply, the Court held that the enhanced remedies of that statute similarly did not apply in this situation.

In my earlier post regarding the Segal v. Genitrix, LLC case, I asked the question as to whether a decision by a Court comprised of five (of seven) justices appointed by Governor Baker signaled a trend toward a narrower reading of employees’ rights.  While it is still too early to tell, this case is one more data point to consider in attempting to read those tea leaves.

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EEOC Releases 2017 Enforcement & Litigation Statistics

The Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with enforcing certain federal employment laws – recently released its fiscal year 2017 Enforcement and Litigation Statistics. In fiscal year 2017, the EEOC resolved 99,109 charges of discrimination.  In doing so, the EEOC made significant headway by reducing its current workload of charges to 61,621 – its lowest level in 10 years.[1]  The EEOC attributes this decrease to its deployment of “new strategies to more efficiently prioritize charges with merit, more quickly resolv[ing] investigations, and improv[ing] the agency’s digital systems.”

The EEOC further announced that employees filed 84,254 charges of workplace discrimination last year – a 7,249 decrease as compared to fiscal year 2016.  Retaliation charges were the most frequently filed, followed by race, disability, sex, and age.  The EEOC specifically noted that it received 6,696 sexual harassment charges, which claims are encompassed in the sex discrimination numbers detailed below.  A complete breakdown of the charges filed is as follows:[2]

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (.2 percent)

Fiscal year 2017 also saw a significant uptick in the amount of private lawsuits the EEOC has filed as compared to 2016. Specifically, in 2017, EEOC lawyers filed 184 discrimination lawsuits, as compared to the 86 lawsuits that were filed in fiscal year 2016.

[1]   By way of reference, in fiscal year 2016, the EEOC had 73,508 charges pending.

[2]   When added together, the percentages total more the 100% because some charges allege multiple claims.

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