New Guidance on Massachusetts Equal Pay Law

The Massachusetts Office of the Attorney General has issued guidance on the amended Massachusetts Equal Pay Act (MEPA), which goes into effect on July 1, 2018. The guidance provides a succinct overview of the MEPA and contains a lengthy FAQ on the amended law’s requirements.

The MEPA prohibits discrimination in pay based on gender and requires employees of different genders to be paid equally for “comparable work.” Under the amended MEPA, “comparable work” is defined as work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. The law does permit differences in pay based on certain factors, such as a merit system, seniority system, or geography, and the new guidance sheds light on the circumstances that must be present to justify variations in pay based on these factors. Employers who violate the MEPA are liable for twice the amount of unpaid wages owed to an affected employee, as well as attorneys’ fees and costs. However, the law provides a complete defense to an equal pay claim if an employer can show that it conducted a good faith, reasonable self-evaluation of its pay practices within a three-year window prior to the claim being filed, and that it has made reasonable progress towards eliminating any discrepancies revealed by the self-evaluation. The new guidance includes a basic how-to guide for employers to conduct a self-evaluation and take advantage of this affirmative defense.

Employers should also be aware that, under the MEPA, they may not prohibit employees from disclosing or discussing their wages, and they may not inquire about a prospective employee’s wage or salary history prior to making an offer of employment that includes terms of compensation. With these provisions, Massachusetts joins Oregon, Delaware, California, and a handful of cities that have implemented similar laws prohibiting inquiries into salary histories. Although the Maine Legislature passed a bill (LD 1259) in June 2017 that would have added Maine to this list, Governor LePage vetoed the bill, leaving limitations on salary inquiries for another legislative day.

Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

EEOC Releases New Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC) has announced a new Strategic Plan for 2018 – 2022. The EEOC approved the new plan unanimously and began implementing it last month.

As explained by the EEOC in its announcement, the Strategic Plan serves as a framework for the Commission to achieve its mission through “strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence.” For each of these three objectives, the EEOC has identified specific outcome goals as well as performance measures to track the Commission’s progress toward those goals.

The new Strategic Plan continues many of the same priorities found in the EEOC’s previous plan. For example, the plan continues to prioritize systemic investigations and lawsuits, which the Commission believes have greater strategic impact due to their wide influence on industries, occupation, and geographic areas. According to the EEOC, though, the new Strategic Plan sharpens the agency’s focus and updates emerging issues of concern. The Strategic Plan’s performance measures contain perhaps the best evidence of this updated focus, which include greater emphasis on obtaining targeted, equitable relief when resolving charges, and ensuring that charge investigations and conciliations meet certain quality criteria.

Although the EEOC has already begun implementation of the new Strategic Plan, it is not doing so at full capacity: the five-member Commission still has two vacancies, and it is not clear when (or if) President Trump’s nominees for those vacancies will be confirmed.

Recent NLRB Activity Has Implications for Social Media

It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC Structurals, Inc.), unilateral changes (Raytheon Network Centric Systems), and employee handbooks (The Boeing Company). Two of these developments have implications for social media in the workplace.

First, in one of the advice memoranda released by the NLRB (Team Fishel), the NLRB’s Division of Advice concluded that a policy restricting the use of social media on company equipment was unlawfully overbroad and represented an opportunity to extend the Board’s decision in Purple Communications to social media. In Purple Communications, the Board held that employees who have been given access to a company email system have a presumptive right to use email to communicate about the terms and conditions of their employment during non-working time. According to the Division of Advice, although Purple Communications was limited to the use of company-provided email, the “internet, including social media, shares many of the email-related attributes that were discussed by the Board in Purple Communications.” Those similarities weighed in favor of giving employees a presumptive right to use social media as a means of communicating about Section 7 activities during non-working time.

Second, with its decision in The Boeing Company, the NLRB threw out the standard it has used to determine whether handbook policies, including social media policies, are lawful. That standard, which the NLRB adopted in 2004 in Lutheran Heritage Village-Livonia, focused on whether a policy could “reasonably be construed” by employees as chilling protected rights under the National Labor Relations Act (NLRA). The breadth of this standard made it difficult for employers to craft compliant policies on social media and other topics, despite attempts by the NLRB’s Office of the General Counsel to provide guidance. Now, under a new standard announced in The Boeing Company, the NLRB will consider both the impact that a workplace policy may have on NLRA rights, and the employer’s legitimate justifications for the policy.

Another Federal Appeals Court Finds Title VII Prohibits Sexual Orientation Discrimination

Following the Seventh Circuit’s landmark decision last April in Hively v. Ivy Tech Community College, the Second Circuit Court of Appeals has joined in finding that Title VII prohibits discrimination on the basis of sexual orientation. In Zarda v. Altitude Express, decided on February 26, 2018, the Second Circuit concluded that Title VII’s ban on sex discrimination “applies to any practice in which sex is a motivating factor.” Because sex is necessarily a factor in sexual orientation, discrimination based on sexual orientation amounts to banned sex discrimination, reasoned the Second Circuit.

The outcome in Zarda is significant because, unlike many state laws that explicitly prohibit sexual orientation discrimination, Title VII has long been interpreted by federal courts as not reaching such discrimination. The Second Circuit’s decision therefore signals a seismic shift in this long-standing consensus and will likely cause other circuits to reexamine their precedent in light of Title VII’s “evolving” legal framework. Although the Eleventh Circuit hewed close to its precedent in a decision issued shortly before Hively and declined to extend the reach of Title VII to sexual orientation discrimination, the Second Circuit’s decision suggests that the Equal Employment Opportunity Commission’s (EEOC) position on sexual orientation discrimination, which the agency has advanced for several years now, may be gathering steam. For example, in a recent decision from the First Circuit, Franchina v. City of Providence, the court noted that the continuing validity of its “nearly twenty-year-old” precedent on Title VII and sexual orientation discrimination was not at issue in the case, but it also observed (citing Hively) that “the tide may be turning when it comes to Title VII’s protections.” How high the tide goes, and whether it will reach the doors of the Supreme Court, remains to be seen.