Sandy Stephens was a housekeeper for Global NAPs, Inc. (Global). Stephens became pregnant in late 1999 and informed Global that she would be taking maternity leave beginning on July 15, 2000. Although the MMLA requires employers to provide eight weeks of maternity leave, Global told Stephens that if she gave birth by cesarean section, she could extend her leave by three weeks until October 2, 2000. On September 27, 2000, Stephens called her supervisor about returning from her medical leave, and her supervisor informed her that Global had terminated her employment.

Stephens sued Global in Massachusetts Superior Court alleging that Global had violated the MMLA by firing her while she was on maternity leave. On July 23, 2004, a jury returned a verdict for Stephens and awarded her over $2 million. Global appealed, but the appeal was dismissed because it had not been filed on time. As a result, Global sued their attorneys for malpractice, and the malpractice case ultimately reached the Massachusetts Supreme Judicial Court.

In considering whether malpractice had occurred, the SJC considered whether Global’s appeal of the Stephens verdict would have been successful if its attorneys had filed the appeal on time. Global argued that it would have prevailed on appeal, because Stephens had been out of work for longer than eight weeks, and the protections of the MMLA apply only to the first eight weeks of maternity leave.

The MMLA specifically states that an eligible employee

who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth …, and who shall give at least two weeks’ notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave.

However, the maternity leave guidelines issued by the MCAD, which is responsible for enforcing the MMLA, provide:

Nothing in the MMLA shall be construed to affect any bargaining agreement, employment agreement or company policy providing benefits that are greater than, or in addition to, those required under [G.L. c. 149, § 105D]. An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.

(emphasis added)

The SJC held that the MCAD had overstepped its authority by interpreting the MMLA in this manner. The court held that the language of the MMLA clearly limited the protection of the statute to eight weeks and that the MCAD could not extend those protections beyond what the legislature provided for in the statute. In its opinion, the court reiterated the general rule that enforcement agencies such as the MCAD have no authority to issue rules and regulations that conflict with or exceed the authority conferred by statute, thus indicating that where agency guidelines conflict with clear statutory language, courts shall not defer to the agency interpretation, but shall look to the clear language of the statute.

The court noted that Stephens still may have had a legitimate case against Global for failing to honor its promise to provide her with an additional three weeks of maternity leave, but that case would have to be brought as a breach of contract, detrimental reliance, or other similar claim, rather than a claim under the MMLA.

The particular issue at the focus of this case is by no means the only example of MCAD guidelines that go beyond the language of the statutes they interpret. It will be interesting to see how quickly this ruling will be relied upon to challenge other interpretations issued by the MCAD and whether the MCAD will seek to make any changes to its guidelines to better conform with the language of the statutes it enforces.

The new amendment may change how employers think about and identify the types of documents that comprise a personnel record and the types of documents that trigger the new notice requirements. The Personnel Records Statute has a broad definition of “personnel record” to begin with: a “personnel record” is defined as any document “kept by an employer that identifies an employee” and is relevant to “that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.” With such a broad definition, the new amendment could have a widespread effect. For instance, a mere e-mail communication between supervisors about a particular employee’s bad behavior could now trigger the notice requirement.

The amendment also imposes a limit on the number of times an employee can request to review his/her personnel file to twice per year; however, reviews arising out of the placement of negative information into the personnel file do not count toward this limit.

Although the bill was not signed into law until August 5, the amendment became effective on August 1, 2010. This means employers must immediately provide notice to employees within ten days of adding negative information that could affect employment or could lead to disciplinary action into an employee’s file.

Employers Cannot Ask Questions About Any Convictions On “Initial” Job Applications

Under the new law, employers are prohibited from asking applicants about their criminal offender record information, including information about arrests, criminal charges and incarceration, on an “initial written application form.” This provision of the CORI law amends Massachusetts General Laws Chapter 151B, Section 4, our state’s anti-discrimination law. Prior to the new amendment, employers had been allowed to ask applicants about felony convictions and certain misdemeanor convictions that were not protected from disclosure. Unfortunately, the new law does not define “initial written application form” so it remains unclear whether employers can ask applicants about criminal offender record information later on in the application process, such as during an interview. The only exceptions to the conviction question ban on initial job applications are where a federal or state law disqualifies an applicant for that position because of a conviction or where an employer is subject to an obligation under federal or state law not to employ an individual who has been convicted.

Employers Will Receive Less Information on a CORI Report

Although employers will still be able to obtain criminal information from the CORI database, they will no longer be able to receive felony convictions that have been closed for more than ten years or misdemeanor convictions that have been closed for more than five years. Previously, employers had been able to receive information about felony convictions occurring up to fifteen years earlier and misdemeanor convictions occurring up to ten years earlier.

Employers That Conduct More than Four Criminal Background Investigations Per Year Must Have a Written Policy

The new law requires that a written policy be in place when an employer conducts more than four criminal background investigations annually. The written policy must include language notifying applicants of the following: 1) that the employer will give copies of the policy and the information obtained during the criminal background investigation to them; 2) that there is a potential for an adverse decision based on the criminal background investigation; and 3) the steps applicants can take to correct their criminal record. Employers must then make sure to give a copy of the policy and the information obtained during the investigation to the applicant.

Employers Have a Duty to Destroy CORI Information

Employers cannot retain a terminated employee’s CORI information for more than seven years from the last day of employment. Similarly, employers cannot retain an unsuccessful applicant’s information for more than seven years from the date of the decision not to hire.

Employers Are Given Some Liability Protections

The law does provide some good news for employers; namely, under the new CORI law, employers cannot be held liable for negligent hiring when relying solely on CORI records and not conducting additional criminal background checks prior to hiring an applicant. Additionally, employers are protected from liability for failure to hire an applicant because of erroneous information on the applicant’s CORI.

Effective Dates for New Law

The initial application provision takes effect on November 4, 2010, which means employers that continue to ask conviction questions on the initial written application on or after November 4 are likely to face liability under the new law. The rest of the law does not take effect until February 6, 2012.

The OFCCP has specifically asked for the public’s opinion on the following questions:

• How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities? If available, include examples or information illustrating the effectiveness of the suggested new requirements.
• What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?
• What barriers currently impede Federal contractors from hiring people with disabilities?
• Are there changes that could be made to the existing language on permissible qualifications standards that would better ensure equal employment opportunities for individuals with disabilities?
• If OFCCP were to require federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?
• Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the federal contractor sector? Explain why or why not.
• What experience have federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?
• What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?
• To what extent does workplace flexibility, including flexibility in work schedules, as well as job-protected leave, impact recruitment and retention of individuals with disabilities?
• Has training of employees and/or managers been effective in increasing advancement and/or retention of individuals with disabilities? If so, how?
• Federal contractors are required to invite all job applicants to voluntarily and confidentially identify their race and gender pre-offer. The collection of this information allows contractors to monitor the impact of their employment practices by race and gender and to assess progress in meeting their affirmative action goals. Existing Section 503 regulations require contractors to invite applicants to voluntarily and confidentially self-identify as a person with a disability after making an offer of employment, but before the applicant begins employment. Would amending the Section 503 regulations to require contractors to invite all applicants to voluntarily and confidentially self-identify if they have a disability prior to an offer of employment enhance a federal contractor’s ability to more effectively monitor their hiring practices with respect to applicants with disabilities? Note that a Section 503 regulation requiring contractors to invite voluntary and confidential self-identification as an applicant with a disability pre-offer for affirmative action purposes would not violate the Americans with Disabilities Act.
• How can linkage agreements between federal contractors and organizations that focus on the employment of individuals with disabilities be strengthened to increase effectiveness? Do linkage agreements have better outcomes when higher level company officials are responsible for their implementation/execution? Include examples of cooperative agreements between employers and disability or community recruitment organizations that have been helpful in hiring persons with disabilities.
• What impact would result from requiring that Federal contractors and subcontractors make information and communication technology used by job applicants in the job application process, and by employees in connection with their employment fully accessible and usable by individuals with disabilities? What are the specific costs and/or benefits that might result from this requirement?
• What other specific changes to the Section 503 regulations might improve the recruitment, hiring, retention, and advancement of individuals with disabilities by federal contractors?
• Regulatory Flexibility Act–Consistent with the Regulatory Flexibility Act, the Department must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations and small governmental jurisdictions with populations under 50,000. The Department of Labor encourages small entities to provide data on how additional requirements under Section 503 may impact them.
• OFCCP seeks public comment on the types of small entities and any estimates of the numbers of small entities that may be impacted by this rule.
• OFCCP seeks public comment on the potential costs of additional 503 requirements on small entities.
• OFCCP seeks public comment on any possible alternatives to the proposed measures that would allow the agency to achieve their regulatory objectives while minimizing any adverse impact to small businesses.

The deadline for receiving comments is September 21, 2010. To read the OFCCP’s notice, click here.

The fact is that since the DOL issued its FMLA regulations in April 1995, it has been clear that individuals who stand in loco parentis (Latin for “in the place of a parent”) to a child are entitled to FMLA leave regardless of any biological or legal relationship to the child. Indeed, the regulations issued in 1995 explicitly define “parent” as “a biological parent or an individual who stands or stood in loco parentis…” and define “son or daughter” as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis…” The regulations go on to clarify the meaning of in loco parentis:

Persons who are “in loco parentis“include those with day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

(emphasis added)

So, since 1995, it has been more than clear that a biological or legal relationship to a child was not necessary in order to take FMLA leave for that child. Why the DOL is issuing a press release with the tag line “Interpretation is a win for all families no matter what they look like” is beyond me. The only thing I can think of is that, since the current administration has been a large disappointment to the LGBT community who hoped to have seen by now the end of “Don’t Ask Don’t Tell” and the elimination of the Defense of Marriage Act, the DOL is issuing press releases like this one to make it look like the government has actually accomplished something for nontraditional families.

The DOL’s Administrator Opinion did make one change to the FMLA regulations, however – the opinion stated that where the regulations state that in loco parentis individuals include “those with day-to-day responsibilities to care for and financially support a child,” this is to be interpreted as including “individuals with day-to-day responsibilities to care for a child” and “individuals with day-to-day responsibilities to financially support a child.” In other words, one individual does not need to both care for and financially support a child in order to stand in loco parentis – doing either will suffice. So perhaps technically the group of people who are entitled FMLA has been expanded a tiny bit, but certainly not as much as all the recent hype suggests, and certainly not enough for the DOL to go around slapping itself on the back and blowing its horn about how much they’re doing for nontraditional families.

In response to the Supreme Court’s ruling, the NLRB is seeking to have the cases remanded to them for further consideration. According to the NLRB in a press release issued today, “[e]ach of the remanded cases will be considered by a three-member panel of the Board which will include Chairman [Wilma] Liebman and Board Member [Peter] Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.”

With the confirmation of Brian Hayes on June 22, the board reached its full five members. The NLRB had not had full membership since December 2007 and, for over twenty-seven months up until this April, it operated with only two members.

As we reported on our blog in March, President Obama had appointed Pearce, along with highly controversial pro-union attorney, Craig Becker, using what is known as a recess appointment, which is an appointment made while Congress is not in session and does not require Congress’ assent. Because these appointments were made during a Congressional recess, the terms were set to expire rather quickly, ending in 2011. Now that the Senate has approved Pearce, his term will not expire until August 2013.

Hayes, a management-side labor attorney, will fill a term expiring in December 2012. With these two appointments, the NLRB will have its full five members. The NLRB has not had full membership since December 2007 and, for over twenty-seven months up until this April, it operated with only two members. Over that period of time, the two member board decided approximately 600 cases on which they could agree. As we reported on our blog last week, on June 17, the United States Supreme Court held that the two member board did not have the authority to issue any of these rulings.

Normally the NLRB is comprised of five members. In December 2007, the terms of three of the five members expired, and no new appointments had been made. Prior to the expiration of the term, all five members agreed to delegate their authority to a three-member panel, as the National Labor Relations Act provides that the Board may delegate its powers only to a “group of three or more members.” Even though there were only two members remaining, the Board decided that two members constituted a quorum of the theoretical three-member panel and therefore had the authority to issue decisions for the Board.

The Supreme Court disagreed, holding that Congress specifically required in the NLRA that the Board’s full power could be designated to no fewer than three members. Thus, three members constitutes a quorum, and the Board had no authority to decree that a “quorum of a quorum” would be sufficient. As a result, the nearly 600 NLRB cases decided by the two-person panel from January 2008 to March 10 are now void. It is expected that the current four-member NLRB will decide how to resolve those cases.

The Plaintiff, James Gonyou, worked as a technician and, later, a technician supervisor for Tri-Wire Engineering Solutions, Inc., a Massachusetts telecommunications company that provides tech services throughout New England. On January 5, 2009, Gonyou became a technician supervisor at Tri-Wire’s Danbury, Connecticut facility. On December 14, 2009, Gonyou filed a lawsuit in Massachusetts against Tri-Wire claiming that he had worked approximately 350 hours of overtime between January and July of 2009 and that Tri-Wire had not paid him overtime pay for those hours. Gonyou claimed that Tri-Wire’s failure to pay overtime violated both the Fair Labor Standards Act and the Massachusetts Wage Act.

Tri-Wire filed a motion to dismiss Gonyou’s claim under the Massachusetts Wage Act, arguing that the Massachusetts Wage Act did not apply because Gonyou worked in Connecticut. The court, disagreed, however, noting that the language of the Massachusetts Wage Act refers to the location of the employer, not the employee:

no employer in the commonwealth shall employ any of his employees in an occupation…for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.

(emphasis added.)

The court decided that this language would be interpreted most reasonably to apply to any Massachusetts corporation that employs individuals both in Massachusetts and elsewhere, and the court did not find that applying Massachusetts law in this situation would be unfair to Tri-Wire.  Accordingly, the court allowed Gonyou to proceed with his Massachusetts overtime claims against Tri-Wire.  Gonyou v. Tri-Wire Engineering Solutions, Inc., D. Mass., 2010.

Of course, even if the court had dismissed Gonyou’s Massachusetts overtime claims, Gonyou still could be entitled to overtime pay under the FLSA; so why bother dismissing the Massachusetts claims?  Because, unlike the FLSA, employers who are found to have violated the Massachusetts Wage Act are automatically required to pay triple damages to employees who are owed overtime or other wages.  The district court’s decision suggests that Massachusetts employers who make wage payment errors will be forced to pay triple damages for those errors, even if those errors were made with respect to employees who don’t work in Massachusetts.