By Stéphanie Smith
It’s not too late to make some resolution for the new year. Below is a summary of three key resolutions Massachusetts employers should focus on in 2018:
- Understand (and Comply With) the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (the “Act”), signed by Massachusetts Governor Charlie Baker in July 2017, is set to take effect on April 1, 2018. Among other things, the law:
- Prohibits discrimination on the basis of an employee’s pregnancy and pregnancy-related conditions;
- Requires employers to provide a reasonable accommodation for employees and applicants who are pregnant (before the Act, employers were only required to provide an accommodation if an employee suffered from a pregnancy-related medical condition that qualified as a “disability,” under applicable law);
- Requires employers to also accommodate “any condition related” to an employee’s pregnancy,” including lactation and the need to express breast milk;
- Prohibits an employer from imposing a particular accommodation (including a leave of absence) if that accommodation is not necessary or another accommodation can be provided that would allow the employee to perform her job; and
- Prohibits employers from retaliating against an employee who requests or uses a reasonable accommodation under the law.
The federal Fair Labor Standards Act already requires employers to provide female employees with reasonable break times for expressing breast milk. However, this law applies only to non-exempt employees and only for the first year after the child’s birth. The Act now requires Massachusetts employers to consider providing more frequent or longer breaks during the workday to all female employees as an accommodation. The Act does not require these breaks to be paid (but the Fair Labor Standards Act may require payment for non-exempt employees, under certain circumstances).
Under the Act, other reasonable accommodations may include time off from work, with or without pay; acquisition or modification of equipment or seating; temporary transfer to a different position; job restructuring (including a modified work schedule); or a private space for expressing breast milk that is not a bathroom. These examples are provided for illustration purposes; the employer and employee must engage in an interactive process to determine an effective and reasonable accommodation that meets the employee’s needs while allowing her to perform her essential job functions.
An employer is not required to provide an accommodation that would impose an “undue hardship”, which the law defines as “an action requiring significant difficulty or expense.” Similar to the standard governing reasonable accommodations for disabled workers, whether a particular accommodation would cause an “undue hardship” will require a case-by-case determination.
There are also notice requirements and rules governing what documentation an employer may require. Please contact us for assistance in complying with the Act.
2. Get Ready for The Equal Pay Law
On August 1, 2016, Massachusetts Governor Charlie Baker signed The Act to Establish Pay Equity (the “Equal Pay Law”), sweeping legislation that is set to replace the Massachusetts Equal Pay Act. The Equal Pay Law, which goes into effect on July 1, 2018, will significantly expand the scope of protection against discrimination by prohibiting gender-based wage discrimination for “comparable work,” which the law defines as work that “requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
This test is fact-specific, and employers are admonished to not look solely at a job title or description in determining comparability. However, the Equal Pay Law will allow for variations in wages based on certain factors, including a seniority system (but note that time spent on parental, family and medical leave may not reduce an employee’s seniority); a merit system; a system that measures earnings by quantity or quality of production, sales or revenue; or education, training or experience (but only to the extent these factors are reasonably related to the job). We are still awaiting regulations from the Attorney General, which may shed further light on the comparability analysis.
Importantly, the law also prohibits employers from asking about the salary history of a prospective employee. Employers can confirm a candidate’s salary history, but only after an offer is made. Although employers may consider this information if it is provided by a prospective employee voluntarily, the circumstances under which the employer obtained the information are likely to be in dispute, rendering an employer potentially vulnerable.
The Equal Pay Law also makes it unlawful for an employer to prohibit employees from discussing or disclosing their wages. (The NLRB already has taken the position that such a prohibition is unlawful under federal law).
In light of the Equal Pay Law, Massachusetts employers should:
- Begin reviewing their pay practices and compensation structure. The law provides an affirmative defense to employers who (1) have completed a self-evaluation of its pay practices in good faith within three years before the filing of a lawsuit, and (2) can show that “reasonable progress has been made towards eliminating” the gender-base wage gap. Employers should consult with legal counsel and weigh the pros and cons of undertaking this review without assistance of counsel.
- Review and revise their application materials and employment policies to ensure timely compliance with the law.
- Train managers to ensure they are aware of the new requirements and prohibited lines of inquiry during the hiring process.
3. Brush Up on Your Anti-Discrimination and Anti-Harassment Policies
The #MeToo (and related Time’s Up) movement is still going strong, after months of one bombshell revelation of improper sexual misconduct after another brought down powerful men in the political, entertainment and news industries.
Be on the lookout for upcoming additional guidance from our firm regarding what constitutes actionable sexual harassment and how to deal with employees who come forward with concerns.
In the meantime, employers should ensure that they have the proper systems in place (including updated policies) to notify employees of the ways in which they may bring forward concerns of workplace harassment and discrimination. Employers must also develop and enforce a culture of respect and compliance, and ensure that no employee who reports concerns of discrimination or harassment will be retaliated against.
As part of this effort, employers should consider training their supervisors on applicable legal requirements and corporate expectations regarding acceptable workplace behavior, as well as how to respond to employee complaints. While not required in Massachusetts, the MCAD encourages employers to train employees on what constitutes sexual harassment and recommends additional training for managers regarding their specific responsibilities.
Nationwide employers must also ensure compliance with applicable local requirements. For example, employers with at least 50 employees and employees located in California are required to provide their California-based supervisors with at least two hours of interactive sexual harassment training (which must also cover “abusive conduct,” as defined under California law), at least once every two years. For purposes of determining whether the employer employs 50 or more workers, the entire workforce is considered, including employees located outside of California as well as temporary workers and independent contractors.