Transcript Employment Law Update * 2017 and Beyond

Employment Law
Update – 2017 and
Beyond
The New England Alliance
January 12, 2017
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Employment Law Update – 2017
and Beyond.
1.
2.
3.
Massachusetts Pay Equity Law
Marijuana Legislation in New England
and its Effects on the Workplace.
The New World Order – Do Unions Still
Have a Voice in a Trump Presidency?
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Massachusetts Pay Equity Law
■ The MA Equal Pay Act prohibits all employers
from paying one employee less than another
employee of the opposite gender for comparable
work.
■ On August 1, 2016, Massachusetts enacted new
pay equity legislation to expand the existing MA
Equal Pay Act.
− Effective July 1, 2018
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Major Changes In New Pay Equity
Legislation
■ Four Major Changes:
− Defining “comparable work.”
− Protecting employees’ rights to inquire about,
discuss, and disclose salary information.
− Barring employers from seeking information
about applicants’ compensation history
before making an offer of employment.
− Creating an employer “self-evaluation”
defense to pay discrimination suits.
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“Comparable Work”
■ “Work that is substantially similar in that it
requires substantially similar skill, effort and
responsibility and is performed under similar
working conditions.”
■ Employers cannot rely on job title or job
descriptions to determine whether work is
“comparable.”
■ Certain variations are permissible: Seniority,
merit system, earnings based on quality of
production, sales or revenue, geographic
location, education/training/experience, travel.
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Inquiries and Communications
Regarding Compensation
■ Employers may not ask job applicants (or their
current/former employer) about compensation
history before making an offer of employment that
includes compensation.
■ Employers may not prohibit employees from asking
about, talking about, or disclosing information
about their compensation.
■ Limitations:
− Employers are not required to disclose any
employee’s compensation information to
another employee or to any third party.
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The “Self-Evaluation” Defense
■ Good faith evaluation of pay practices.
■ Must demonstrate reasonable progress toward
eliminating gender-based compensation
differentials for comparable work.
■ Must be reasonable in detail and scope in light
of the employer’s size.
■ Must be completed within the three years before
the alleged violation.
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The “Self-Evaluation” Defense
(cont’d)
■ Self-evaluations and plans for correcting genderbased pay disparity cannot be used:
− To prove a violation occurred before the selfevaluation completed.
− To prove a violation occurred within six
months following the evaluation’s completion.
− To prove a violation occurred within two years
following the evaluation’s completion, if the
employer can show that it developed and was
in the process of implementing a remedial
plan.
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Other Key Provisions
■ Enforcement
■ Damages
■ Limitations Period
■ No Retaliation
■ No Pay Reductions
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Next Steps for Employers
■ Review and update job applications to
ensure they do not seek information
concerning compensation history.
■ Review and update interview notes,
guidance and training materials for all
parties engaged in the pre-offer hiring
process (e.g., recruiters, HR, interviewers).
■ Conduct new training to ensure all parties
involved in recruiting and interviewing are
aware of the new law’s requirements.
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Next Steps for Employers (cont’d)
■ Review and update company policies that
prohibit employees from inquiring about
or discussing compensation with coworkers.
■ Consider creating a new or more robust
company policy concerning equal pay.
■ Be prepared to work with legal counsel on
a self-evaluation to identify gender-based
pay disparity.
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Marijuana Legislation in New
England
■ November 2016: MA and ME voted to legalize
marijuana.
− VT, NH, CT, and RI all allow for medicinal use of
marijuana (in addition to MA and ME).
■ Massachusetts: Individuals 21 and older may
possess, use, purchase, and manufacture up to one
ounce of marijuana.
− Marijuana use is prohibited in public places and
anywhere smoking is banned.
− Does not require an employer to permit or
accommodate employees’ use or possession of
marijuana and does not affect employers’ ability to
enact and enforce workplace policies restricting the
consumption of marijuana by employees.
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Marijuana Legislation in New
England
■ Maine:
− Effective January 30, 2017, individuals 21 and older
may possess and use up to 2.5 ounces of marijuana.
− Employers are not required to allow or accommodate
the consumption, use or possession of marijuana in
the workplace.
− Employers may adopt and enforce policies restricting
use of marijuana by employees and may discipline
employees who are under the influence of marijuana
in the workplace.
− Employers may not refuse to employ an individual 21
or older solely because of that employee’s
consumption of marijuana outside the employer’s
property.
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Legalized Marijuana and
Workplace Policies and Practices
■ MA and ME: employers may continue to institute drug-free
workplace policies.
■ Employee use of marijuana outside of work.
− ME forbids employers from refusing to hire an employee solely
because of the employee’s consumption of marijuana outside
the employer’s property.
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Employers should consider whether drug testing applicants for
employment is necessary and consistent with business necessity.
Rejecting an applicant over marijuana use detected in preemployment drug test could lead to liability.
− MA statute is silent.
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Prohibiting use of marijuana outside of work could potentially create
liability based on discrimination laws, privacy laws, etc.
■ Drug testing: consider using marijuana drug testing sparingly.
− “Reasonable suspicion” testing.
■ Apply policies consistently to similarly-situated employees.
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Medical Marijuana and
“Reasonable Accommodations”
■ Under the ADA, “a qualified individual with a disability shall
not include any employee or applicant who is currently
engaging in the illegal use of drugs, when the covered entity
acts on the basis of such use.”
− Marijuana is still a banned substance under the federal
Controlled Substances Act – use of marijuana is not a
reasonable accommodation under ADA.
■ State anti-discrimination and medicinal marijuana laws may
require employers to tolerate use of medicinal marijuana as
a reasonable accommodation.
− E.g., Medical marijuana laws in all N.E. states (except VT)
explicitly state that employers do not need to allow employees
to use medical marijuana on-site, but there is little guidance on
whether allowing the employee to use medical marijuana offsite would be a reasonable accommodation.
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The New World Order
Do Unions Still Have a Voice in a Trump
Presidency?
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Background
■ Change of political party in power can
have dramatic impact on traditional labor
law matters.
■ Certain doctrines have flipped 2 or 3
times over a 40 year period.
■ Under Obama – progressive agenda had
NLRB seeking to expand the scope of its
jurisdiction, especially in the context of
non-union employers.
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Current Makeup of NLRB
■ 3 Board Members:
− Gaston Pearce (D) – August 2018
− Lauren McFerran (D) – December 2019
− Philip A. Miscimarra (R) – December 2017
■ 5 year terms with consent of Senate.
− Early years of Obama administration – did
not have a quorum; appointments held up at
Senate.
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Unlikely to be an issue for Trump, given the
current makeup of the Senate.
Initial Expectations of Trump-Constituted
National Labor Relations Board
■ Dialing back on the issuance of General
Counsel memoranda.
− Don’t expect any reports on connection
between social media and potential impact on
Section 7 protected, concerted activities.
■ NLRB enforcement – lower budget, fewer
resources for investigations and
enforcement actions (such as 10(j)
injunctions).
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What About Implications for the
Joint Employer Doctrine?
− Major Impact
− Franchisor/franchisees
− Employers
and staffing firms
− Private equity firms and portfolio
companies
− Browning-Ferris Industries decision by
NLRB on August 27, 2015.
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On appeal at U.S. Court of Appeals – DC Circuit.
Employer that used staffing agency
Old Standard
Joint Employer Standard: whether employers
share or co-determine those matters governing
essential terms and conditions of employment.
− Right to hire or fire workers.
− Set wage rates.
− Set working conditions and working hours.
− Approve overtime.
− Manner and method of work performance.
− Old NLRB cases – would look to see if not only
authority to control employees’ terms and
conditions of employment, but also exercise that
authority directly and in more than a limited
manner.
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New Standard
− Board overruled four earlier NLRB decisions.
− Right to control test – possession of authority
to control terms and conditions of
employment.
− No question that this was expansion of joint
employer doctrine and would have major
ramifications.
− If DC Court enforces NLRB order, fully expect
writ of certiorari to U.S. Supreme Court.
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Pending Joint Employer Litigation
NLRB is also litigating joint employer
doctrine right now against McDonald’s.
− At the ALJ trial stage and still going on.
− Uncertain whether NLRB’s litigation stance
will change mid-stream.
− Expect employers in franchise industry to feel
emboldened by Trump presidency.
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