HRMA of Western New England, Inc. Legal Update

1. HRMA of Western New England, Inc.Legal Update Meghan B. Sullivan, Esq. Meghan.Sullivan@sullivanandhayes.com September 19, 2011

2. Recent Massachusetts Decisions • Wage Deductions • Massachusetts Maternity Leave Act

3. Wage Deductions In Camara, the SJC made it clear that there are very limited circumstances in which employers are permitted to dock an employee’s pay. The Court held that an deductions may not be made from an employee’s wages based on a “unilateral determination” by the employer.

4. Wage Deductions Permissive deductions as a “valid set off”: (1) an undisputed loan or wage advance; (2) employee theft or misappropriation established through an independent proceeding with due process protections; and, (3) an employer's judgment against the employee for the value of the employer's property. • If an employer seeks to recover money owed it by an employee through wage deductions, the employer must use a system involving “due process” for the employee, even where the employee has agreed to the deduction.

5. What does this mean for Employers? • Previously, employers were able to recover money lost through the fault of the employee (e.g. lost or damaged property of the employer) through wage deductions. • Following Camara, employers are now greatly restricted in the deductions they may make from an employee’s pay – even where the employee agrees to the deduction! • Prior to making any wage deductions, employers should be sure that there is ample documentation and a neutral fact finding process.

6. Massachusetts Maternity Leave Act Global NAPs, Inc. v. Awiszus, SJC MMLA protections are limited to a period of eight weeks. Employers may provide a period of leave extending beyond those eight weeks, but the protections of MMLA would not apply to the extended leave.

7. Pending Paid Sick Leave Legislation • The Massachusetts “Paid Sick Days Act”, if signed into law, would require all employers throughout the Commonwealth, regardless of size, to allow an employee to earn up to seven (7) paid sick days per year to be used for certain specific reasons.

8. Non-compete Legislation Hearing last week, Joint Committee on Labor and Workforce Development H.2293, An Act Relative to Noncompetition Agreements H.2296, An Act Relative to Prohibition of Noncompetition Agreements S. 932, An Act To Prohibit Restrictive Employment Covenants.

9. New Connecticut Employment Laws • Mandatory Paid Sick Leave – Covered employers will be required to provide paid sick leave to qualifying “service workers”. • Use of Credit Reports in Employment Decisions – Employers will soon face restrictions on the use of credit reports when making employment decisions.

10. EEOC’s Take on Credit Checks “The use of credit checks to vet potential job candidates and in other employment decisions is an emerging issue that the EEOC is very focused on.” Edward Loughlin, EEOC Attorney, Aug. 26, 2011. “Statistics show a disparate (i.e., discriminatory) impact”

11. EEOC’s Take on Credit Checks (continued) “Employers need to concern themselves with whether [it] is job-related and consistent with business necessity.” “We are going to look to see if it [is]”. If an employer runs checks on only one protected class, “that is a whole new set of issues.”

12. Federal Legislative Update • Amendments to the Fair Credit Reporting Act (“FRCA”) • Americans with Disabilities Amendments Act (“ADAA”) regulations issued • EEOC issues Genetic Non-Discrimination Act (“GINA”) regulations • FLSA – Break Time for Nursing Mothers

13. Supreme Court Decisions • Title VII Anti-Retaliation Coverage Broadened – In Thompson v. North American Stainless, the Court held that a third-party who had never engaged in protected activity, nevertheless had standing to sue under Title VII. • FLSA: Verbal Complaints Trigger Protections – FLSA provides anti-retaliation protections to an employee that has “filed any complaint”. In Kasten v. Saint-Gobain Performance Plastics Corp., the Court held that verbal complaints made to employers qualify for these anti-retaliation protections.

14. The National Labor Relations Board’s Attack on Employers Watch What You Say! Through prosecution guidelines issued to NLRB Regional Offices, General Counsel is seeking to further limit the statements that may be made by an employer during bargaining by broadening the scope of statements that would trigger a duty to provide information to a union.

15. NLRB Lunacy Attack on Medium & Small Employers Both the NLRB & the Department of Labor have issued proposed regulations which will greatly impact an employer’s legal right to provide information to its employees in response to union organization in the workplace. These proposed regulations, if adopted, would have a far greater impact on medium and small employers.

16. NLRB Lunacy – cont’d Make Room for a New Workplace Rights Poster Effective November 14, 2011, employers covered by the National Labor Relations Act (that’s almost ALL private-sector employers) will be required to post a notice that informs employees of their rights under the Act. The NLRB will make copies of the notice available on its website by November 1.

17. BREAKING NEWS… SIX WEEKS AHEAD OF SCHEDULE THE POSTER IS AVAILABLE! http://www.nlrb.gov/poster

18. Rats!

19. The Boeing Complaint The NLRB Issues Complaint Against Boeing The NLRB is going after Boeing for opening a plant in South Carolina that created over 1,000 new jobs!

20. NLRB – The Upside? Recently, many employees who had been discharged from their employment after being caught making disparaging remarks about their employer (e.g. “Wuck Falmart”) on Facebook and other social media sites had argued they were engaging in “concerted activity” and therefore they were protected by the NLRA. The NLRB has seen through these “concerted activity” claims and has generally upheld the terminations.

21. Until This Month, that is… Sept. 2, 2011, ALJ decision Hispanics United of Buffalo (HUB) and Carlos Ortiz, NLRB Case No. 3-CA-27872 A Facebook-posting-concerted activity-case the employer lost.

22. HUB Facebook Case 5 Employees terminated • History of Facebook postings and text messaging • New posting: “Lydia Cruz, a coworker feels we [don’t do a good job]. I about had it! My fellow coworkers how do u feel?”

23. HUB Decision (continued) Series of Responses • 5 HUB co-workers • Executive Director’s administrative assistant • A Board Member • Series of responses containing sarcasm, expletives, and derogatory remarks including negative statements about clients.

24. HUB Decision (continued) Next Work Day 5 Short Meetings with the Executive Director • Cruz had a heart attack as a result of the harassment (no proof) • Postings violated policy (no policy) • HUB will have to pay Cruz (makes no sense) • You are fired (that was discrimination)

25. HUB Decision (continued) Also noted by the ALJ… The Administrative Assistant was not fired, and was not even disciplined. Cruz did not testify.

26. When do employee-postings lose protection of the Act? Atlantic Steel, 1979 Whether the employee’s conduct became so opprobrious (scurrilous) to lose protection. Four factors: • The place of the discussion; • The subject matter; • The nature of the outburst; and, • Whether the outburst was provoked by a ULP.

27. EEOC and Criminal Background Checks MA brought you CORI reform EEOC brings you: “statistics show” criminal records checks have a disparate impact Public Hearing Aug. 1, 2011 Job-related prohibitions “meets the criteria of being job-related and consistent with business necessity”

28. EEOC: Criminal Records Job-related and consistent with business necessity: • Nature and gravity of the offense • Length of time since the date of the crime • Length of time since the completion of the sentence “If we find evidence of an adverse impact on a protected group, and an absolute bar to employment is based on the mere fact that the individual has a conviction record, we’re going to say that violated Title VII.”

29. EEOC on Social Media Employers “need to be consistent” “If you wouldn’t ask for it during an interview, don’t search for it online. It could possibly get you in trouble.” “We will apply the same rules that we applied under traditional Title VII analysis whether information was obtained through social media or more traditional means.”

30. THANK YOU!