Labor Day. How many lawyers have their practice honored with a holiday?

Speaking of labor, there is news on both the state and federal fronts that could affect your business. Have a relaxing holiday.

Federal appointments to NLRB and Labor Department finally confirmed

After months of political sparring and judicial rulings, the National Labor Relations Board and US Labor Secretary are in place and ready to go. Thomas Perez, as head of the Labor Department, is expected to move several new regulations forward that have been backlogged for months, including employment measures for veterans and the disabled; increase in wages for home health care workers; and new limits on workplace hazards. Several controversial rules regarding union organizing and allowing union officials to take part in nonunion company safety inspections are also on board. A particularly irksome rule is a potential requirement for employers to disclose attorneys and consultants hired to assist with union organizing drives, even where there has been no direct contact with workers. Perez is expected to be an activist, meaning more regulations and rules and consequently more litigation.

Meanwhile, the NLRB is up and running again after their appointments were vacated by the Supreme Court. For the first time in a decade a full board is sitting, and cases can be decided with a quorum. More certainty is expected now, with the anticipation for pro-labor decisions. Moreover, a full board could be deciding hundreds of decisions made by previous board members that have been challenged in court and might wind up back before the new NLRB. Decisions on employee handbooks, social media and union elections are expected in the near future. We will keep you posted.

Department of Labor Updates FMLA Guidance Recognizing Same-Sex Marriage

The spousal leave provisions of the Family and Medical Leave Act apply to married gay couples, Labor Secretary Tom Perez announced Aug. 9 in an email to DOL employees.

DOL has updated departmental guidance on FMLA in the wake of "the [U.S.] Supreme Court's recent decision in United States v. Windsor, which struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples," Perez said.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, including caring for a spouse who has a serious health condition. DOMA, however, prohibited the federal government from recognizing same-sex marriages, so DOL did not require employers to grant married gay people FMLA leave to care for their spouses. On June 26, the Supreme Court ruled that Section 3 of DOMA, which excludes state-sanctioned, same-sex marriages from the federal definition of marriage, is unconstitutional (United States v. Windsor, U.S., No. 12-307; 64 BTM 209, 7/2/13). Same-sex marriage is recognized in 13 states and the District of Columbia.

US Supreme Court Ruling on Workplace Harassment Barely Noted With the high profile cases on same sex marriage and the Voting Rights Act stealing the news, a case that could dramatically change the landscape for workplace harassment suits has received scant attention. In Vance v. Ball State University, the Supreme Court narrowed the definition of "supervisor," making it harder to attribute liability to employers. In a 5-4 decision, the Court found that an employer may be vicariously libel for an employee's unlawful harassment only where the employer has empowered that employee to take "tangible employment actions'" The actions cited by the Court are: hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. The Vance case involved racial discrimination but there is reason to believe that the new supervisor definition would apply to other protections under Title VII of the Civil Rights Act.

As Congress did after the Supreme Court decision in Ledbetter v Goodyear sparked outrage, it could address the outcome of this case. Title VII, which turns 50 next year, could be amended to broaden the definition of "supervisor" as someone with authority over an employee's actions on the job.

Recent Massachusetts Developments

  • Surge in Wage and Hour Lawsuits: It will come as no surprise to many employers that a nationwide swell in wage and hour claims has been pronounced in the Bay State, due to the 2008 changes to the state Wage Act granting mandatory treble damages in all wage claim cases. Cases in Massachusetts federal courts jumped 9.9 percent in 2012-2013. The Attorney General has collected an average of $5.9 million in restitution, penalties and fees each year since 2007, up from $3.9 million in 2006. The trend shows no sign of abating, with jackpot settlements and verdicts attracting the attention of plaintiff's lawyers and employees alike.
    • Because small wage claims can quickly mushroom, employers need to be extra careful classifying an employee as an independent contractor. Should you have any questions about this or need a wage and hour audit, please contact us.
  • Principle that invalidates non- competes gains traction: The "material change doctrine," a unique feature of Massachusetts employment law, is the principle that a non-compete agreement is voided if there are material changes to an employee's duties or compensation after the agreement is signed. This defense by employees is still developing but we believe employers should be prepared: Write flexibility into the agreements and revisit them often. Non-compete agreements in Massachusetts must be carefully drafted to provide employer's the protection they seek and we recommend using employment counsel.
  • Associational Discrimination Allowed: Where a plaintiff brought suit under the state anti-discrimination statute (G.L.c. 151B) claiming that he was terminated based on the defendant employer's bias against his disabled spouse, the court held that the statute encompasses such a claim. Reversing an order dismissing the associational discrimination claim, the court found the circumstances of this case—where the employee was terminated because of his wife's costly healthcare—was within the scope of the law. In a concurring opinion, the court emphasized the limited scope of its holding. The court recognized the potential tsunami of allowing a nondisabled employee to bring a claim for discrimination under other facts.

As always, you can contact us if you have any questions. We can help. 508-548-4888 or