Archive
#MeToo at MCAD
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)
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.
Department of Labor Proposes New Interpretation of Joint Employer Status Under The Fair Labor Standards Act
By: Amanda Thibodeau
On April 9, 2019, the United States Department of Labor (“DOL”) published a notice of proposed rulemaking (the “NPRM”) to amend its existing regulations regarding so-called “joint employer” status under the federal Fair Labor Standards Act (the “FLSA” or the “Act”).
The FLSA requires covered “employers” to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 hours in a workweek. The Act also contemplates scenarios in which other “persons,” in addition to the nominal employer, may be jointly liable for wages due to an employee under the Act. This concept is generally known as joint employer wage liability (although the term “joint employer” is not specifically used in the language of the FLSA). Joint employer status under the FLSA implicates questions such as:
- Is a franchiser liable for the wage obligations of its franchisees?
- Is an institutional investor liable for the wage obligations of its portfolio businesses?
- Is a parent corporation liable for the wage obligations of its subsidiaries?
In 1958, the DOL issued regulations interpreting joint employer status under the Act. Those regulations instructed that multiple persons or entities may be jointly liable for wage obligations due to an employee if they are “not completely disassociated with” respect to the employment of an employee. This open-ended standard, which remains the current DOL benchmark on the subject, has been the subject to debate for nearly sixty years.
The DOL indicates that the purpose of the NPRM is to make the determination of joint employer status under the FLSA “simpler and more consistent.”
A New Test For Joint Liability Status
The NPRM proposes a four-factored test to determine when a person or entity shares wage liability for an employee with the nominal employer. The four factors are whether the person or business entity:
- hires or fires the employee;
- supervises and controls the employee’s work schedule or conditions of employment;
- determines the employee’s rate and method of payment; and
- maintains the employee’s employment records.
The NPRM clarifies that that “the potential joint employer must actually exercise . . . one or more of these indicia of control to be jointly liable under the Act.” (Emphasis supplied). The reserved, but unexercised, contractual right to act in relation to an employee “is not relevant for determining joint employer status.” In addition, the NPRM provides a set of examples that illustrate the limits of the four-factor test:
- The potential joint employer’s business model—for example, operating as a franchisor—does not make joint employer status more or less likely under the Act.
- The potential joint employer’s contractual agreements with the employer requiring the employer to, for example, set a wage floor, institute sexual harassment policies, establish workplace safety practices, require morality clauses, adopt similar generalized business practices, or otherwise comply with the law, do not make joint employer status more or less likely under the Act.
- The potential joint employer’s practice of providing a sample employee handbook, or other forms, to the employer; allowing the employer to operate a business on its premises (including “store within a store” arrangements); offering an association health plan or association retirement plan to the employer or participating in such a plan with the employer; jointly participating in an apprenticeship program with the employer; or any other similar business practice, does not make joint employer status more or less likely under the Act.
What’s Next?
It should be noted that NPRM is a proposal. The DOL is now soliciting comments from interested parties with respect to the NPRM, and will begin the process of developing a final rule on the subject. Whether the DOL ultimately adopts the rules proposed in the NPRM is unclear. What is clear is that the DOL is focused on clarifying standards with respect to this contentious area of employment law. Morse will continue to monitor, and report on this subject.
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Morse’s Employment Law Group regularly advises clients with respect to compliance with the Fair Labor Standards Act and its developments.
For more information, please contact Amanda Thibodeau or Matthew Mitchell.
Equal Pay Day in Massachusetts: Are you in compliance?
By: Amanda Thibodeau
April 2, 2019, is National Equal Pay Day – a date designated by the National Committee on Pay Equity to highlight inequities in wages between men and women. Equal Pay Day marks how far into the next calendar year the average American woman would have to work in order to make as much as the average American man made in the preceding year. With the recent passage of the Massachusetts Equal Pay Law, Equal Pay Day also serves as a reminder to all Massachusetts employers that they have specific legal obligations to examine, identify, and eliminate wage gaps among their male and female employees.
Read about the obligations in our Employment Law Alert.
Massachusetts Employment Law Blog 