New Earned Sick Time Notice and Updated Safe Harbor Regulation

By Alexandra D. Thaler

With just weeks to go before the Massachusetts Earned Sick Time law goes into effect on July 1, 2015, the Massachusetts Attorney General’s Office is continuing to issue guidance and documentation relevant to the law, including the required notice posting and an update to its safe harbor regulation.

The AGO’s current draft regulations provide that this Notice of Employee Rights (and not an employer-drafted alternative), must be both posted in a conspicuous location at Massachusetts worksites and distributed to employees.  The English language version of the required poster is now available here.  The AGO’s notice contains the basic outlines of the law’s requirements, including, among other things, minimal required rates of accrual and carry-over, permissible reasons for use, employee notice obligations, and contact information for the AGO (as required by the authorizing legislation).  It also reminds employees that sick time cannot be used as an excuse to be late for work, and that misuse of sick leave may result in discipline. Read more

Supreme Court Rules on Pregnancy Accommodations

By Martha J. Zackin

Early this week, the United States Supreme Court issued its much-anticipated decision in Young v. United Parcel Service, Inc., finding that UPS may have engaged in pregnancy discrimination by refusing to accommodate an employee’s pregnancy-related lifting restrictions by transferring her to a light duty position.  In so holding, the Supreme Court applied the same legal standard to pregnancy discrimination cases as applies to cases based other categories protected under Title VII (race, sex, religion, ethnicity, and the like).  Specifically, the Court applied the burden-shifting analysis articulated in McDonnell Douglas v. Green and its progeny, pursuant to which the plaintiff first must establish that the facts alleged are adequate to support her claim.  Thereafter, the employer is given the opportunity to articulate a legitimate, nondiscriminatory reason for its action, which reason the plaintiff must show is merely a pretext for discrimination before she may proceed to trial. Read more

NLRB Strikes Down “Overbroad” Confidentiality Agreement

By Martha J. Zackin

As an employment lawyer, I have had the opportunity to review hundreds of confidentiality and non-disclosure agreements.  Although there are invariably differences from one agreement to the next, virtually all have at least one thing in common- the inclusion of “employee information” within the description of information to be kept confidential.  Such “employee information” typically includes, among other things, salary and pay rates, incentive compensation structures, and disciplinary or investigatory matters.

Over the past few years, the National Labor Relations Board (the Board) has increasingly sought to protect both unionized and non-unionized employees’ rights under Section 7 of the National Labor Relations Act (NLRA), which provides that all employees have the broad right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”   For example, the Board has found that Section 7 rights are impinged by policies that require employees to be courteous, refrain from discussing internal investigations, prohibit employees from disparaging or defaming the employer, and prohibit gossip and negativity in the workplace.  (click here for a compilation of NLRB-published information pertaining to social media policies and the use of Facebook and Twitter by employees).

Recently, the Board added standard confidentiality agreements to the growing list of employer policies it has found to violate Section 7, by invalidating a handbook policy that prohibited employees from disclosing or using “for his or her own benefit or the benefit of others, either during or after employment, employer information including “human resources related information” and information pertaining to “investigations by outside agencies.”  This policy, the Board found in Battle’s Transportation, Inc., was overbroad because employees “would reasonably construe those phrases to encompass terms and conditions of employment or to restrict [them] from discussing protected activity, such as Board complaints or investigations.  The Board also found a company directive that prohibited employees from discussing company business with company clients to be unlawfully vague and overbroad, because “employees would reasonably construe this prohibition to restrict discussion about union-related matters.”

Although the Battle’s Transportation workplace is unionized, it is likely that the Board would similarly strike down an “overbroad” confidentiality agreement within a non-unionized workplace.  Although the fight is far from over, it may make good practical sense to review and modify policies now, before the NLRB comes calling.

Massachusetts Extends Parental Leave Rights to Employees Regardless of Gender

By Sasha Thaler

Since 1972, the Massachusetts Maternity Leave Act (M.G.L. c. 149 s. 105D) has provided eight weeks of unpaid, job-protected leave to full-time female employees who meet certain eligibility requirements, on the occasion of the birth and, more recently, the adoption of a child.  One of former Governor Deval Patrick’s last official acts was to sign into law a revision of the MMLA that extends those rights and job protections to men, beginning on April 7, 2015.

The new Parental Leave Law retains many of the key provisions of the MMLA familiar to most Massachusetts employers: Read more

Top Employment Law Changes for Massachusetts Businesses- End of Year Review

By Sasha Thaler

2014 brought a number of legislative changes which will affect Massachusetts employers of all sizes in 2015.  Here is a recap of the top 5 changes employers should be prepared for in the New Year. Read more

Workshop: Employment Law Basics for Start-Ups and Small Businesses

On October 29, 2014, Bello Welsh will present a session on HR and Employment Law Issues for Start Ups and Small Businesses at the Cambridge Innovation Center, 1 Broadway, Cambridge, MA.

Start-up companies focus on developing their idea and bringing their product or service to market.  Small existing businesses work to implement their core business goals and strategies.  In either case, there is often little inclination or staff to pay close attention to day-to-day employee issues.    After all, how difficult can it be to manage a workforce comprised of a relatively few employees?  The answer is “very.” HR is a complicated patchwork of federal, state and local laws, regulations and requirements, most of which apply in some form to employers of all types and sizes.  HR problems can surface when least expected, and can be extremely time consuming and costly.

In this discussion, you’ll learn how to manage the complexities of Small Business HR and to minimize the risk of preventable lawsuits, penalties, and time-consuming employee-relations issues.  For example, you’ll learn about:

  • Creating and maintaining appropriate documentation, including job descriptions, offer letters, personnel policies, and other personnel documents;
  • Managing employee performance and terminations;
  • Managing leaves of absence;
  • Dealing with wage & hour issues; and
  • Handling internal complaints and investigations

The session will be held on October 29, 2014, 6:00 p.m. to 8:00 p.m. , at the Cambridge Innovation Center, 1 Broadway, Cambridge, MA, in the Charles River Room (14th Floor).

Please register at the following site:




EEOC Publishes New Guidance on Religious Garb and Grooming in the Workplace

By Leigh C. Tinmouth

The EEOC recently published a question-and-answer guidance (“Guidance”) regarding religious garb and grooming in the workplace. The EEOC, through the Guidance, states that, in most instances, employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow their religious dress and grooming practices.

The EEOC observes that Title VII protects all aspects of “sincerely held” religious observances and religious beliefs. Under the Guidance,” religion” is defined broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, or only subscribed to by a small number of people. The Guidance emphasizes that an applicant or employee’s religious beliefs may be “sincerely held” even when the religious practices at issue are illogical or unreasonable to others, and even when they deviate from commonly-followed tenets of the applicant or employee’s religion. Non-observance is also protected, and discrimination based on an individual’s lack of religious beliefs is prohibited.

The EEOC, through the Guidance, takes the position that Title VII requires an employer to make an exception to its policies and practices (including its dress and grooming policies and practices) if an applicant or employee requires a religious accommodation for a “sincerely held” religious belief unless doing so would pose an undue hardship. Customer preferences or maintaining a certain “image” do not constitute an undue hardship. Employers are also reminded that Title VII bars retaliation against an employee because the employee has engaged in protected activity (which includes requesting religious accommodation), and workplace harassment based on religion (which includes asking an employee to engage in a religious practice that is contrary to his or her beliefs).

The EEOC sets forth questions and answers pertaining to, among other issues, accommodating religious dress and grooming practices of employees who have only recently adopted religious observances, accommodating religious dress and grooming practices even when doing so will purportedly harm an employer’s “image,” and providing religious accommodations to employees with long hair or unshaven facial hair. Click here to review these questions and answers as well as other topics addressed in the Guidance.

President Obama Directs DOL Secretary Perez to Revise Overtime Rules

Today President Obama directed the Secretary of Labor to “begin the process of addressing overtime pay protections to help make sure millions of workers are paid a fair wage for a hard day’s work and rules are simplified for employers and workers alike.”  In particular, the President directed Secretary Perez to focus on the so-called “white collar” exemptions to the overtime regulations, which exempt bona fide executive, administrative, professional, and outside sales employees from the overtime requirements of the Fair Labor Standards Act.

According to the press release announcing the initiative, the overtime (and minimum wage) rules that were originally passed in 1938 have been updated only twice in the last 40 years.  With inflation, many “exempt” workers earn below the poverty line.

No specific details were offered.  We will keep you posted as more details emerge, and as the rule-making progress inches along over the coming months.


HR Manager’s Remarks Regarding Nature of Hiring Process May Help Employee Establish Discrimination Case

Article by Monica Rose Cafaro (Posted by Martha Zackin)

A recent decision by a federal appeals court underscores the need for HR mangers and other hiring personnel to watch what they say about job openings and the company’s hiring practices.

In Kidd v. Mando American Corporation, a white female employee who worked in the accounting department of a Korean-owned company was not considered for a promotion, despite her qualifications.  Instead, a Korean male was hired.  When the employee who was not hired – Leanne Kidd – complained to an HR Manager, Ms. Kidd alleges she was told that the Company’s predominately Korean management “refused to even consider an American candidate.”   Ms. Kidd also alleges that another HR employee told her that “no matter what . . . there would never be any American management in the company, it would always be Korean management . . . .”  Ms. Kidd relied on the HR employees’ comments to support her claim that that the employer engaged in discriminatory hiring practices by hiring the Korean male candidate over her and other qualified American candidates.

Finding that the company articulated a legitimate non -discriminatory reason for the adverse employment action, the lower court dismissed Ms. Kidd’s complaint.   In so holding, the lower court refused to consider the HR employees’ comments, finding that they were not admissible as evidence to show that the company’s articulated reason for denying Ms. Kidd a promotion was a pretext for unlawful discrimination.

The Eleventh Circuit overturned the lower court’s decision after analyzing various legal standards relating to hearsay.  That legal analysis is not relevant to the point of this blog entry- rather, the key point here is that HR employees, as well as other employees involved in hiring decisions, should avoid commenting on a company’s hiring practices or disclosing certain desired characteristics of an “ideal candidate.”  Periodic training, to educate and to reinforce good hiring practices and “common sense” principles, may help to remind hiring personnel and management employees of their obligations under the law.

EEOC Hands Out New Religious Discrimination Complaint

On September 25, the EEOC issued a press release announcing CONSOL Energy and Consolidation Coal Company violated federal law when they refused to accommodate a long-time employee’s religious belief.  Apparently, the companies installed a biometric hand scanner to track employee time and attendance.  The employee in question, Beverly Butcher, believed that that there was relationship between hand-scanning technology and the Mark of the Beast,* such that submitting to handscanning technology would violate his sincerely held religious beliefs as an Evangelical Christian.

The money quote in the EEOC’s press release is this:

In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs…Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.

Whether an employer believes that biometric technology is the Mark of the Beast, and thus a prelude to the End of Days, is not relevant.  All that matters under the law is whether the employer reasonably accommodates an employee’s sincerely-held religious belief if it can do so without undue hardship. Here, the companies allowed employees to submit manual time cards if their handprints could not be read with a biometric scanner.  Accordingly, the EEOC asserts, this same accommodation should have been offered to Mr. Butcher.


*Biblical reference to the Mark of the Beast may be found in Revelation 13:16-17.