New Year, New Laws, New Website

   

Hope your 2018 is off to a great start! We have a robust new website which we updated to change those awful pictures make it easier to use our resources. Please take a minute and check it out? http://www.foleylawpractice.com

Remember those laws we wrote about months ago — Pay Equity Act and the Pregnant Workers Fairness Act? They’re finally here. We break it down with action steps below, including, of course,  sexual harassment:

Massachusetts Pregnant Workers Fairness Act (MPWFA): This law will require all Massachusetts employers to update handbooks and policies; provide reasonable accommodation to pregnant and breastfeeding employees; and provide written notice to all employees about their right to be free from discrimination under this Act no later than April 1, 2018.

The law amends Massachusetts anti-discrimination laws to specifically prohibit retaliation and discrimination against pregnant employees, creating a new protected class to include:  “pregnancy or a condition related to pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child.” While Massachusetts and Federal laws already prohibit pregnancy discrimination, the new law creates an obligation for employers to engage in an interactive dialogue,  provide accommodations to pregnant and breastfeeding employees and provide new, existing and newly pregnant employees with notice of these new rights.  With the creation of a new  protected class comes familiar language and obligations: reasonable accommodation, interactive process and undue hardship.

Reasonable accommodation might include more frequent rest breaks; seating or modified equipment; paid or unpaid time off to recover from childbirth; a private space to express breast milk that is not a bathroom; job restructuring; or a modified work schedule. The interactive process mandate requires employers and employees (or prospective employees) to engage in a timely and good faith interactive process to determine a reasonable accommodation to perform the essential functions of the job. An employer is not required to provide and accommodation that would cause an undue hardship, defined as an accommodation “requiring significant difficulty or expense.” Finally, an employee may not be forced to take a leave of absence if a reasonable accommodation could be made to stay on the job.

Next Steps

• Update handbooks and personnel policies to reflect the increased obligations under the new law, including the adoption of a specific policy outlining and documenting the interactive process;
• Train human resources personnel and managers regarding the requirements of the Act;
• Ensure proper measures are in place to provide written notice in all instances required under the Act; and

Contact us with any questions and assistance in compliance. This law is a big deal.

 

Pay Equity–It really is on the horizon.

One of the strongest state laws in the country addressing equal pay for comparable work will take effect in Massachusetts on July 1, 2018.

The sweeping Act makes many changes including how to determine comparable work, and prohibiting salary and benefit inquiries before hire, to name a few. Employees will not be required to file a claim with MCAD as before but can go directly to court.

The silver lining of these new obligations is the Act provides an affirmative defense to employers who perform a good faith evaluation of pay practices. Over the past several months many of our clients have utilized out Pay Equity Audit  which creates a rolling affirmative defense for your company. We strongly advise employers to take advantage of this comprehensive and valuable service before July 1, 2018.

 

Sexual Harassment

The standard sexual harassment compliance advice has been to implement a well-written sexual harassment policy and invest in sexual harassment training. Yet many of the workplaces rocked by recent claims—including the Weinstein Company in California, home to the country’s strictest anti-harassment laws—had a policy and training in place. What can be done?

In response to the changes in climate and the new EEOC guidelines, we have developed a Sexual Harassment Tool Kit. For a flat fee we will provide:

1.    A digital copy of Attorney Angela Snyder’s No More #MeToos webinar that can be shared with your entire leadership team, serving as the first level of effective sexual harassment training for leadership and HR;
2.   A comprehensive outline for creating a sexual harassment strategy for your organization;
3.   A model sexual harassment policy and/or review of your existing sexual harassment policy;
4.   Sample Letter from Leadership in Word that sets forth your organization and leadership’s commitment to addressing sexual harassment in the workplace that can be modified to meet your specific needs;
5.    A sample “pulse” survey to send to employees that will help uncover underlying cultural erosions; and
6.   One hour of attorney time to uncover your unique risks based on demographics and culture. During that discussion we will provide a punch list of action items that will help you finalize a customized sexual harassment strategy.

 

We believe strongly in proactive advice and want to make this service as accessible as possible. We are offering the Tool Kit for a very reasonable flat fee. Please contact us.

 

 We can help! Reach out to us at questions@foleylawpractice.com or (508) 548-4888.

 

 

New California Rules Surrounding Employee Rest Periods

The U.S. Senate took a major step toward repealing the Affordable Care Act last week, by voting to approve a budget blueprint that will allow them to essentially dismember the law without the threat of a Democratic filibuster.  Meanwhile, in California, the Supreme Court continued the state’s trend toward increasing employee rights and protections.  For employers, and those of us who spend our days advising them, this sums up what the next four years will likely look like.  The Federal government will roll back employee friendly laws, and revert to a more employer friendly stance, while states California, Massachusetts, New York, New Jersey, and Illinois will continue to ramp up employee protections.  It is a brave new world, and one where compliance just got a whole lot more challenging, particularly for employers operating in multiple states.

In California, where the rule for some time has been that employers may not generally require employees to remain on duty or on-call during meal breaks, the California Supreme Court recently issued a new decision, Augustus v. ABM Security Services, Inc., confirming that employers have the same obligations regarding rest breaks as they do regarding meal periods:  employees must be relieved of all duties and employers must relinquish all control.

In reaching its decision, the California Supreme Court held: “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.”  The Court expressed concern that employees would need to stay close to the employer’s premises during their rest breaks; and combined with the affirmative duty to be “on-call,” it was sufficient to establish employer control.

Although the Supreme Court holding does not preclude employers from reasonably rescheduling rest periods when needed, or requesting an exemption from the Division of Labor Standards Enforcement (DLSE), the Court was clear that placing an employee on call during a rest period is not permissible.

Next Steps

Although the Court’s decision is in line with language in applicable IWC Wage Orders, the Labor Code, and prior holdings, it is a good reminder to employers to evaluate their rest break practices to ensure compliance.  Employers should review their handbooks and policies to ensure they do not require employees to stay on premises or at a certain location, or to carry cell phones or pagers, or perform any duties whatsoever during breaks.  It is common for employers in states outside of California to require employees to remain at or near the premises during rest breaks.  It is important that provisions like these be amended for employees in California.