Massachusetts Pregnant Workers Fairness Act Takes Effect April 1, 2018

Pregnant workers in Massachusetts will soon benefit from broader protection against discrimination under the recently enacted Massachusetts Pregnant Workers Fairness Act (“MPWFA”).  This new law, which applies to all employers with six or more employees, updates and expands upon existing state anti-discrimination statutes and makes it an unlawful practice to discriminate against a pregnant employee or an employee affected by a condition related to pregnancy.  The most notable change is that employers will now be required to provide reasonable accommodations for pregnancy and related conditions, including lactation and the need to express breast milk, unless the employer can prove that doing so would pose an undue hardship on its business.


DOL Adopts “Primary Beneficiary” Test for Interns

The U.S. Department of Labor announced Friday that it was abandoning the six-factor test it had previously used for determining whether interns are employees for purposes of the Fair Labor Standards Act, and that it was now adopting the “primary beneficiary” test favored by several U.S. Courts of Appeals.

As we discussed recently, the Second Circuit in Wang v. The Hearst Corporation, No. 16‐3302 (2d Cir. Dec. 8, 2017), and the Ninth Circuit in Benjamin v. B&H Education, No. 15-17147 (9th Cir. Dec. 19, 2017), had recently rejected the DOL’s six-factor test in favor of the “primary beneficiary” test, which focuses more on the economic realities of the relationship and examines, among other factors, whether the intern or the employer is the primary beneficiary of the relationship.


New Guidance on Interns v. Employees

The test for determining whether unpaid interns at a for-profit employer are employees under the Fair Labor Standards Act, and thus entitled to compensation for services provided, has been the subject of considerable litigation over the past few years. Employers now have recent guidance from two federal appellate courts to use in analyzing their intern programs.

In Glatt v. Fox Searchlight Pictures, Inc., Nos. 13‐4478; 13‐4481 (2d Cir. Jan. 25, 2016), the Second Circuit (which covers district courts in Connecticut, New York and Vermont) explained that, in determining whether an individual is an intern or employee, the salient question is whether the intern or the employer is the “primary beneficiary” of the relationship. The court identified a set of non-exhaustive factors that must be weighed and balanced:


Resolutions for a Harassment Free New Year

Dear Clients, Colleagues and Friends:

The year 2017 marked a seismic shift in the way the nation views sexual harassment. Time Magazine named “the silence breakers” as its Persons of the Year.  The words “me too” went from a simple phrase, to a hashtag, to a movement.  And, a deluge of claims of sexual misconduct and harassment exposed and toppled the giants of Hollywood, the news media, government, and so many other high profile industries.   While some employers may take comfort in the fact that the stories of sexual misconduct and harassment that dominate the news involve the rich, the famous and the powerful, it is extremely naïve to assume that the aftershock-shock effects of the recent torrent of sexual harassment claims will not impact all employers in 2018 — even those smaller employers who operate in mundane industries.

As you reflect on the past year and make plans for a new one, it is a good time for all employers to take a hard look at the measures you take to both provide your employees with a harassment free workplace and insulate your company from liability for workplace harassment claims. Since resolution-making season is upon us, consider making these 5 resolutions to start your 2018 harassment-free.


The Legal Pitfalls Inherent in Using “Works Made for Hire” in California

Labor and employment issues are frequently triggered in the entertainment space, particularly in California.  Some of these issues are well-known by practitioners in both areas of practice, while others can be a bit more obscure.  This article addresses one important area of overlap that is often the source of confusion for practitioners and their clients alike who, unbeknownst to them, have created employment relationships with their commissioned independent contractors, simply by including standard, boilerplate copyright language in their contracts.

Under U.S. Copyright Law, only the author of a work can rightfully claim the copyright in that work. Obviously, when you have a number of “authors” contributing to a creative work – which happens frequently in music, film, television, etc. – joint authorship in that work can become problematic if not impossible to manage.

As a result, the Copyright Act created what is known as a “work made for hire,” i.e., a work prepared by an employee within the scope of his or her employment, OR a particular type of work specially ordered or commissioned for use, where expressly agreed upon in writing.  In such instances, the employer or person commissioning the work is considered the “author” of the work.


What Does HR Have to Do with a Med Mal Case for Long Term Care Providers?

It is no secret that HR professionals and executives are the gatekeepers for so many workplace legal concerns. With long term care providers, the focus on patient care is always paramount; but mitigating risk goes hand in hand with your day-to-day staff operations. This patient care and employee/employer behavior reaches an immediate, pivotal crossroads when a medical malpractice claim is filed. Now, the facility’s HR practices are heavily scrutinized to determine if and what was known about the offending employee from the time of hire to the reported incident and steps taken by the employer to correct and more.  Brian Inamine and Nancy Reynolds explored the interplay of employment issues for long term care facilities in a recent webinar – including abuse, medical diversion, med mal and more.  Click here to view the recording of the complimentary one-hour webinar on key issues and reminders on best practices and more.

Employer ADA Test Conundrum? Seventh Circuit Flip Flops on ADA Accommodation Ruling

The Seventh Circuit ruled that an employee’s extended medical leave request was “categorically unreasonable” under the ADA. However, what should an employer do when one of the Seventh circuit judges writes that prior decision is wrong and violates the ADA?

On September 20, 2017, in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of an employer that terminated an employee who requested a two to three month extended medical leave in addition to his 12 week FMLA leave. The Court applied a per se rule that an extended medical leave is categorically unreasonable as a matter of law and held that the employee is not a qualified individual under the ADA.

On October 17, 2017, the Seventh Circuit issued a per curiam, non-precedential, disposition order in Golden v. Indianapolis Housing Agency, (7th Circuit 2017, pursuant to Circuit Rules of the U.S. Court of Appeals for the seventh Circuit Rule 32.1, affirming summary judgment in favor of an employer on the basis of its decision in Severson. In an extremely detailed, concurring opinion, Judge Ilana Rovner stated that, while the Court is bound to follow Severson because it is the law of the Circuit, Judge Rovner believes that the Severson decision is wrong; is without any support from the text of the ADA; and violates the express language of the ADA which requires that an individualized assessment be conducted before a decision is made as to whether an accommodation is reasonable.

Here, we answer the question: what should an employer do in light of this recent Seventh Circuit case law?


Social Media – “Exhibit A” in Litigation

A recent case from the Commonwealth Court of Pennsylvania illustrates in vivid detail the potentially disastrous litigation consequences for employees of making ill-advised postings on social media, including Facebook.  It also illustrates the utility for employers of monitoring such postings for use in litigation, within appropriate legal boundaries.

In Gumpher v. Unemployment Bd. of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017), the Plaintiff had worked as a painter for Epic Metals Corporation for just under two years.  At the commencement of his employment, the Plaintiff, who was married and had numerous children, including one with special needs, was informed that he may be required to work occasional evenings.  While the Plaintiff’s wife was not working at the time, she later secured employment that required her to work evenings.  The Plaintiff’s wife would watch the children during the day, and the Plaintiff would watch the children in the evening. 


California Implements Statewide “Ban the Box” Law Effective January 1, 2018


California has become the tenth state to pass the “ban-the-box” law which removes the conviction history question on job applications for private employers with five or more employees.   Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have already passed ban-the-box laws statewide.

Assembly Bill 1008 signed by Governor Jerry Brown will become effective January 1, 2018.  AB 1008 adds a section to the California Fair Employment and Housing Act (FEHA) which prohibits an employer from engaging in various defined forms of discriminatory employment practices.

Employment Application.  AB 1008 makes it an unlawful employment practice under FEHA for any employer with 5 or more employees to include on an employment application any question that seeks the disclosure of an applicant’s conviction history.


National Origin Discrimination: California to up the Ante

Remember the travel ban? The Wall? Ramped up deportations? California is moving to counter and guard against potential negative employment consequences for foreign-born workers and more.  The California Department of Fair Employment and Housing (DFEH), the agency charged with enforcing the state’s civil rights laws, is considering new regulations to implement or enhance California’s national-original discrimination statute.

The current statute, Government Code §12940, identifies national origin as a prohibited basis for discrimination, but doesn’t provide details. The DFEH is empowered to promulgate regulations interpreting and implementing this statute and others. Cal. Gov’t Code §12935(a). So what enhancements are contained in the proposed regulations? Think of the Obama-era EEOC’s National Origin guidelines. See EEOC Enforcement Guidance On National Original Discrimination (2016).