Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers

July 10, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Employment attorney Amanda Thibodeau will be speaking on the MCLE program Employment Law Issues for Gig Workers, being held on Tuesday, July 30. The program will provide an overview of the current state of the law, how various governing bodies on the state and federal levels have grappled with companies and workers in the gig economy, and how each side can protect themselves and navigate changing employment laws in this arena. The agenda will include topics of discussion such as:

  • What is the “Gig Economy” and which employers and workers fall into this category
  • Overview of classifications of workers and legal consequences of misclassification
  • Reviewing recent state and federal guidance on classification issues
  • Reviewing states’ legislative responses governing gig employment
  • Understanding other common employment issues in the gig economy
  • Understanding how a gig business can mitigate its risks and what workers should do to protect themselves

For more information and to register, view the MCLE event page.

U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional

June 17, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?

On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.

Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.

The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.

The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.

Massachusetts Paid Family and Medical Leave Update: Governor Baker and Legislative Leaders Issue Joint Statement Delaying Employer Contributions

June 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

On June 11, 2019, Massachusetts government leaders announced their intent to amend the Massachusetts Paid Family and Medical Leave Act (the “PFMLA”) to delay the employer payroll tax contribution start date, required by the PFMLA, to October 1, 2019 (from the prior start date of July 1, 2019). In connection with the announcement, Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo issued the following joint statement:

“To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.”

The announcement appears to be a response to concerns raised by industry groups related to compliance deadlines associated with the rollout of PFMLA. The changes to the PFMLA described in the announcement still require confirmation by both the House and Senate, and the scope of the other “technical changes” to the PFMLA anticipated in the announcement remains unclear.

Morse is monitoring developments concerning the PFMLA, and will provide further updates as appropriate. For additional information concerning the PFMLA, please see Morse’s prior alerts on the subject:

Massachusetts Paid Family and Medical Leave Update: Department Sets May 31, 2019 Deadline for Employers to Comply with Notice Requirements

Massachusetts Paid Family and Medical Leave Update: Department EXTENDS Deadlines for Employee Notice and Private Plan Compliance Obligations

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

DOL Issues Opinion Letter Classifying Workers in the Gig Economy As Independent Contractors

June 6, 2019 Leave a comment

2015-01-05_8-57-41The U.S. Department of Labor (DOL) recently issued an Opinion Letter analyzing the classification of workers in the virtual marketplace or “gig economy.” This refers to companies that operate in the “on-demand” or “sharing” economy, using online and smartphone applications to connect consumers to service providers in a wide variety of services, such as transportation, cleaning, delivery, and shopping.

The DOL was asked to analyze the classification of such service providers under the Federal Labor Standards Act (FLSA), ultimately deciding that based upon the facts provided by the unidentified company in question, the service providers were independent contractors.

This is vitally important in that independent contractors are not afforded the same protections under the FLSA as employees. For example, employees are entitled to minimum wage, overtime pay, and other benefits under the FLSA, while independent contractors are not. Continue reading in our Employment Law Alert.

Title VII at SCOTUS

June 3, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

In April 2019 the U.S. Supreme Court announced it would hear three cases related to discrimination based upon sexual orientation and gender identity during its next term. The Court will analyze the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of a protected class. Currently, the lower courts are split on whether the term “sex” in the statute includes sexual orientation and/or gender identity. Both the Second and Seventh Circuit Courts as well as the Equal Employment Opportunity Commission (EEOC) all interpret Title VII as covering sexual orientation, while the Eleventh Circuit disagrees.

In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.

The Zarda case involves a skydiving instructor who was fired after he disclosed to a customer that he was gay. Mr. Zarda subsequently died in a 2014 skydiving accident, and his estate has been pursuing the case on his behalf. The U.S. Court of Appeals for the Second Circuit interpreted Title VII to include sexual orientation under its protections. Mr. Zarda’s former employer then appealed that decision to the U.S. Supreme Court.  Noteworthy is that the EEOC and the Department of Justice (DOJ) both submitted briefs in the Second Circuit which were inapposite of each other: the EEOC arguing that Title VII protects discrimination based upon sexual orientation, while the DOJ argued it does not.

In the Bostock case, a child welfare services coordinator claimed he was fired for being gay. The Eleventh Circuit ruled against him, citing a 1979 5th Circuit case that held homosexuality is not prohibited by Title VII.

The third case, Harris, involves a transgender woman, Aimee Stephens, who was fired after informing her employer, a funeral home, that she was a transgender woman and would start wearing women’s clothing to work. Her former employer defended itself in the case by claiming that it believed gender transition violated “God’s commands.” The federal district court initially ruled that Ms. Stephens was discriminated against, but that the employer was protected by the Religious Freedom Restoration Act. The Sixth Circuit then reversed the district court, holding that not only is transgender discrimination prohibited under Title VII, but also that the employer was not protected by the Religious Freedom Restoration Act. The funeral home appealed.

Some states, like Massachusetts, already provide their own individual protections based upon sexual orientation and/or gender identity, but many states do not. The Supreme Court’s determinations in these cases, therefore, have the potential to change the landscape of employment discrimination law nationwide, and will be closely watched.  Advocacy groups, such as the American Civil Liberties Union (who is co-counsel in two out of three cases), are particularly concerned about the potential impact of the Court’s decisions. Decisions in these cases are expected by June 2020.

Morse will watch these cases closely and will provide updates as new information becomes available.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.

#MeToo at MCAD

May 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

The Massachusetts Commission Against Discrimination (MCAD) recently released its 2018 Annual Report. This Report ­­­features data and other important information about the MCAD’s operations and mission during that calendar year.

According to the 2018 Annual Report, sexual harassment claims filed with the MCAD increased 400 percent in January and February 2018 compared to those months in previous years. As the year went on, however, the number of new sexual harassment filings slowed.

While the Annual Report stops short of theorizing the reasons behind this drop off, the causes may be two-fold. The media coverage of the #MeToo movement, which gained notoriety in the fall of 2017, began to dwindle through late 2018. This decrease in intense media spotlight may have contributed to the number of potential claimants coming forward.

Another more hopeful reason could be that employers became more proactive on sexual harassment issues. The Annual Report noted that the MCAD received an “overwhelming” number of requests for sexual harassment prevention training during early 2018. The result may be that employers are taking stronger and more appropriate positions to both prevent sexual harassment and halt it when it occurs.

But a word of caution: Employers would be reckless to use these statistics as a reason to get lax in their sexual harassment trainings, policies, and procedures. While the media coverage of #MeToo may have faded, protecting employees from harassment is still an ongoing concern. Sexual harassment claims often present significant economic costs to the employer, which could include legal costs, emotional distress damages, and punitive damages. This is on top of the now very significant non-economic and reputational costs for employers which often include being distracting for employees, causing high public damage, and fostering an environment of distrust of leadership when not handled appropriately.

Employers should be conducting at least annual sexual harassment trainings for their workforce, as well as for new hires. Employers should also make sure their handbooks are up to date and lay out a clear and effective procedure for the reporting and handling of harassment claims. These policies should not live in a vacuum and should be re-visited from time to time and adjusted. Most importantly, employers cannot and must not retaliate against employees who raise concerns or file formal complaints.

Do not wait for an incident to take these steps. It is important to open a dialogue among all levels of employees, and set the expectations and values for the employer from the start. When employees feel protected and heard, the employer puts itself in a better position to effectively and appropriately handle harassment claims, and hopefully prevent them altogether.

For more information on the prevention and handling of harassment claims, please contact Matthew Mitchell or Amanda Thibodeau.

UPDATED: Federal District Court Reinstates EEO-1 Pay Data Reporting Requirements (For Now)

May 9, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we previously reported, in March 2019 the U.S. District Court for the District of Columbia issued a ruling concluding that the White House Office of Management and Budget (“OMB”) did not have a sufficient basis to stay pay reporting data requirements (known as “Component 2”) previously announced by the U.S. Equal Employment Opportunity Commission (“EEOC”).

On April 3, 2019 the OMB filed a brief with the U.S. District Court for the District of Columbia proposing a September 30, 2019 deadline for the EEOC to complete the Component 2 pay data collection, which was approved by the Court later that month.

On May 1, 2019, the EEOC announced it expects to begin collecting the Component 2 pay data for both 2017 and 2018 calendar years in mid-July 2019 in anticipation of the September 30, 2019 deadline. The EEOC expects to open a submission portal for employers to submit that data this summer. A copy of the published announcement can be found here.

Employers are still expected to submit their 2018 Component 1 data by the May 31, 2019 deadline.

The Morse Employment Law Group will continue to monitor this issue and provide updates as they become available.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.