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Archive for the ‘Employment Discrimination’ Category

What the New Massachusetts Equal Pay Act Will Do to Address the Wage Gap, What It Means for Women, and How Women Can Use This Law in Their Favor

Posted on: March 30th, 2018 by admin

 

 

At First Glance

On July 23, 2016, the Massachusetts Legislature passed the Act to Establish Pay Equity (the “Equal Pay Act”), M.G.L. c.149, Section 105A, which is to take effect on July 1, 2018..

While the terms “equal” and “pay equity” come up frequently in discussions of the Equal Pay Act, the new law will not mandate that wages between women and their male coworkers be equal. However, it will increase transparency concerning wages, and make remedies available to women who are paid less than their male coworkers for “comparable work.”

The Equal Pay Act forces employers to evaluate their pay practices to ensure there is no discrimination in wages or salary on the basis of gender alone.  Further, the law provides employees with the freedom to discuss wages and salary amongst themselves, giving female employees more access to information about how their pay rates compare with those of male employees doing “comparable work.”

What is “Comparable Work”?

Employees who do “comparable work” are not simply employees with identical job titles or job descriptions.  Under the Equal Pay Act, two employees are said to perform “comparable work” if their jobs “require[s] substantially similar skill, effort and responsibility and [are] performed under similar working conditions.”

What Employers CANNOT Do under the Equal Pay Act

The Equal Pay Act states:  “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The Act also makes clear that if an employer is violating the Equal Pay Act by, for instance, paying female employees $20 per hour and male employees $22 per hour for comparable work, the employer may not lower everyone’s wages to $19 per hour just to become compliant with the law.

What Employers CAN Do under the Equal Pay Act

There are still six instances in which employers can legally pay different wages and/or salaries to people doing comparable work. Employers are NOT considered to be in violation of the Equal Pay Act if differences in pay are based on:

  1. Seniority with the employer, as long as seniority is not reduced by any time an employee spends on leave for a pregnancy-related condition or on parental, family or medical leave;
  2. A merit system;
  3. Certain productivity benchmarks;
  4. Differences in the geographic locations where the jobs are performed;
  5. Differences in employees’ education, training, or experience, if “reasonably related to the particular job in question”; or
  6. Differences in regularly required, necessary travel.

The Impact of the Equal Pay Act: Before the Job and on the Job

Before you get a job, an employer cannot request your wage or salary history from you or from your current or former employer, nor can an employer require that your prior wage or salary history meet certain criteria. But if you volunteer such information to an employer that is considering hiring you, the employer may:

  1. Confirm your prior wages, or permit you to confirm prior wages or salary; or
  2. Seek or confirm your wage or salary history after an offer of employment with compensation has been negotiated and made to you, the prospective employee.

Once you start work and are on the job, an employer cannot require that, to keep your job, you refrain from asking other employees about their wages or from sharing information about your own wages.

Importantly, an employer cannot fire or otherwise retaliate against you if you challenge anything the employer does that is in violation of the Equal Pay Act; mention an intention to complain about such conduct; participate in any investigation or proceeding concerning a violation of the Equal Pay Act; disclose your own wages or salary; or discuss other employees’ wages or salaries with them.

What Do You Do If Your Employer Is Violating the Equal Pay Act?

You may take legal action against your employer for any violation of the Equal Pay Act. Such an action must be taken within three years after the date of the alleged violation.

What Are the Possible Results of Taking Legal Action Against Your Employer for an Equal Pay Act Violation?

If your employer is found to have violated the Equal Pay Act, the employer may be required to compensate you for unpaid wages, plus an equal amount of liquidated damages (an amount of damages that is calculable by the Court). In addition to any judgment obtained, you would be entitled to reasonable attorneys’ fees and costs in connection with your action, to be paid by the employer.

Employment Agreements and Lack of Intent to Discriminate are NOT Defenses.

If you are a female employee receiving less pay than a male colleague for comparable work (and none of the exceptions described above apply), this is a violation of the Equal Pay Act even if your employer insists it didn’t mean to discriminate; whether the employer meant to or not is irrelevant under the law. Furthermore, even if you signed a contract when you were hired agreeing to a wage that was less than what the Act legally entitled you to, your employer cannot use the agreement as a way to avoid legal responsibility for the violation. Similarly, if you were paid less at a previous job than the Equal Pay Act now entitles you to, this cannot be used by your current employer as a justification for illegally underpaying you.

An Employer’s Line of Defense: The “Self-Evaluation”

An employer who is found to have violated the Equal Pay Act has a potentially valid defense if it can show (a) that it has conducted a “Self Evaluation” of its own pay practices within three years of the violation, and (b) that it has made “reasonable progress… towards eliminating the wage differentials based on gender for comparable work in accordance with that evaluation.” While the Attorney General may, in the future, establish specific requirements for the detail and scope of an employer’s Self Evaluation, there are no such requirements in the current version of the Equal Pay Act. It is up to the judge or other arbiter evaluating a case to determine whether the employer’s evaluation was sufficient.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for discrimination and retaliation under the Family Medical Leave Act (FMLA (29 U.S.C. sec. 2601 et seq.)), The Americans with Disabilities Act (ADA) and under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

EMPLOYER ALERT: NEW PREGNANT WORKER LAW STARTS APRIL 1ST

Posted on: January 25th, 2018 by admin

pregnant women

On April 1, 2018, An Act Establishing the Massachusetts Pregnant Workers Fairness Act, (“PWFA”) goes into effect.  All employers in Massachusetts should be aware of this law.  The PWFA extends the protections of Massachusetts anti-discrimination law (Massachusetts General Laws, Chapter 151B) to pregnant workers within the Commonwealth, and grants additional safeguards for pregnant workers seeking workplace accommodations relating to their pregnancy. The PWFA specifically extends coverage for pregnancy, and related conditions, including lactation.

Essentially, the PWFA applies the reasonable accommodation standards that are used in disability cases to pregnancy, and requires employers to engage in an interactive process and to provide employees reasonable accommodations, unless doing so would impose an undue hardship on the employer. The PWFA includes a non-exhaustive list of specific accommodations that may be available to pregnant employees, including:

(1)   Time off to recover from childbirth (with or without pay);

(2)   More frequent or longer breaks (with or without pay);

(3)   Temporary transfer to a less strenuous/hazardous position;

(4)   Job restructuring;

(5)   Light duty;

(6)   Private non-bathroom space for expressing breast milk;

(7)   Assistance with manual labor; or

(8)   Modified work schedules.

The PWFA requires the need to engage in an interactive process, which is essentially a dialogue between the employee and employer concerning possible accommodations that may be available.

The PWFA also makes it illegal for an employer to: (1) retaliate against pregnant workers who seek accommodations, (2) refuse to hire an individual who may need an accommodation  relating to pregnancy or the need to express breast milk; (3) require a pregnant or lactating employee to accept an accommodation that does not enable them to perform the essential functions of their job; (4) require a pregnant or lactating employee to take a leave of absence, when other accommodations may be available; and (5) refuse to hire an individual because of her pregnancy ore related condition.

Importantly, all employers covered by the act are required to provide written notification to existing employees of their rights under the PWFA on or before April 1, 2018, and new employees at the start of their employment.

As with other violations of Chapter 151B, employers who fail to comply with the provisions set forth in the PWFA may be liable for back pay, front pay, emotional distress, punitive damages, and attorneys’ fees and costs.

 

 

Bennett & Belfort secures $1,235,000 Jury Verdict v MWRA

Posted on: January 18th, 2018 by admin

2013-david-b-photo-150x150A Suffolk County jury today awarded $1,235,000 to Richard DaPrato against the Massachusetts Water Resources Authority (MWRA). In reaching today’s verdict, the jury concluded that the MWRA deliberately retaliated against Mr. DaPrato  after 11 years of unblemished service by firing him for taking medical leave for surgery, and for requesting future leave.

Mr. DaPrato was represented by David E. Belfort of Bennett & Belfort PC of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. The jury strongly rejected the Authority’s argument that Mr. Daprato violated the public trust.  Instead, the jury found that the MWRA, a public entity, violated Mr. DaPrato’s rights to medical leave under both the Family Medical Leave Act and the Massachusetts Fair Employment Practices Act (M.G.L. 151B)

The Jury awarded Mr. Daprato $320,000 in lost pay damages, including his future pension losses, in addition to $200,000 in emotional distress damages.  The Jury issued punitive damages to deter future outrageous conduct by the MWRA in an amount of $715,000.

David Belfort said, “This decision affirms the rights of employees to request and take legally protected medical leave without being subjected to adverse action.”

The final judgment, which has not yet been entered, will also include pre-judgment interest and a petition for Mr. DaPrato’s attorneys’ fees is forthcoming.  (See Jury Verdict Slip Below)

DaPrato Verdict 1.18.18_Page_1DaPrato Verdict 1.18.18_Page_2

 

BENNETT AND BELFORT, P.C. PARTNER, TODD BENNETT, QUOTED IN THE BOSTON BUSINESS JOURNAL

Posted on: December 8th, 2017 by admin


tb-124x150Bennett and Belfort, P.C. partner, Todd Bennett, was quoted in the November 29, 2017 Boston Business Journal article entitled, “Biotech’s #MeToo Moment.” https://www.bizjournals.com/boston/news/2017/11/29/biotech-s-metoo-moment-lawyers-say-bias-harassment.html.  The article is about the recent uptick in claims of sexual harassment and gender discrimination being brought by female employees in the biotech industry.  Attorney Bennett stated that in his experience, there remains an “inaccurate stereotype among leadership, which is predominantly male, that women lack the scientific acumen to either perform the necessary functions of their jobs or to be promoted to a leadership role,” which is oftentimes used as a “pretext for the failure to promote or hire.”

In light of the current publicity concerning widespread sexual harassment by prominent and powerful figures in the entertainment and media industries, we believe that more and more women are realizing not only that it is permissible and personally empowering to  speak out when subjected to sexual harassment and discrimination at their jobs, but that these complaints may very well give others the courage to come forward and may prevent future employees from suffering the severe emotional distress caused by such unacceptable and unlawful behavior.

National Business Institute (NBI) Human Resource Law Seminar

Posted on: August 11th, 2017 by admin

 

wwa_eric-117x150
On July 12, 2017, Bennett & Belfort partner Eric R. LeBlanc spoke at the National Business Institute (NBI) Human Resource Law Seminar alongside Debra Dyleski‑Najjar, Julie A. Moore, Sarah E. Worley, Laurel M. Gilbert, Richard S. Loftus and Jeffrey S. Siegel.  Attorney LeBlanc and the other speakers shared their knowledge and perspectives on various aspects of human resource law, addressing such topics as “Updates in Employment Law;” “Discipline & Discharge- Necessary Documentation;” “Employee Handbooks & Policies;” “Wage & Benefits Issues;” “Investigating Complaints of Harassment & Other Misconduct;” and “Alternative Dispute Resolution in the Employment.”

Eric spoke about proper procedures to follow and pitfalls to avoid during all phases of the employer-employee relationship:  the hiring process, the period of employment, and the employee’s exit from employment, whether voluntary or involuntary.

Eric’s lecture touched on the following fundamentals:

A. Hiring:  How to craft a clear job description; what to look for, what to say and do, and what not to say and do how during selection and         vetting of candidates.

B. Policies and procedures:  Establishing unequivocal, written policies in the following areas and following them closely:

  1. Employment at Will
  2. Equal Opportunity
  3. Anti- Discrimination/Anti-Harassment/Reporting(including the process for investigating employee complaints of discrimination and harassment)
  4. Payment of Wages
  5. Conduct/Discipline

C. Performance:  Careful, contemporaneous documentation of employees’ job performance.

D. Termination:  Again, careful and contemporaneous documentation of the process as well as the presence of at least one witness to the employer-employee interactions.

Eric emphasized to seminar attendees that no matter how egregious an employee’s performance might be, compassion and respect are crucial elements of an employer’s stance at every point on the employment time line.

We are proud that Eric’s expertise in employment law was recognized by the National Business Institute, and pleased that he was able to contribute to employers’ understanding of practices beneficial to both sides of the employer-employee relationship.

WHEN IS THE DUTY TO ENGAGE IN THE INTERACTIVE PROCESS TRIGGERED?

Posted on: March 27th, 2017 by admin

In MCAD & Amanda LaPete v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) awarded Complainant (Amanda LaPete), a woman who was terminated while on approved leave for post-partum depression, back pay plus $50,000.00 for emotional distress stemming from her employer’s disability discrimination.  Docket No. 10-SEM-02769 (Kaplan, J., February 5, 2017).

While employed by Respondent (Country Bank for Savings), Complainant was granted 17 weeks of leave to give birth, which comprised of accrued sick and vacation time, eight weeks of maternity leave (as permitted by M.G.L. c. 149, § 105D), and an additional four weeks pursuant to the federal Family and Medical Leave Act (“FMLA”).

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Complainant suffered post-partum depression while on leave and notified Respondent of her disability.  She consistently provided Respondent with updates during her leave, including a timeframe for her return to work.  Notably, Complainant fully intended to return to work with Respondent, yet her health care provider suggested she take further time off due to persistent depression and anxiety.  Complainant requested an additional four weeks of leave, however, Respondent ignored her request and terminated her employment.

The Massachusetts anti-discrimination statute, M.G.L. c.151B, prohibits discrimination by an employer based on disability.  To prove a case of disability discrimination for failure to provide a reasonable accommodation, complainant must show: (1) that she is “handicapped”; (2) that she is a “qualified handicapped person” capable of performing the essential functions of her job; (3) that she needed a reasonable accommodation to perform her job; (4) that Respondent was aware of her handicap and the need for a reasonable accommodation; (5) that Respondent was aware, or could have been aware, of a means to accommodate her handicap; and (6) that Respondent failed to provide Complainant the reasonable accommodation.  Hall v. Laidlaw Transit, Inc., 25 MDLR 207, 213-214 (2004).

In Country Bank for Savings, the MCAD Hearing Officer ruled that Complainant established sufficient evidence to prove a prima facie case of disability discrimination for failure to provide a reasonable accommodation by demonstrating that she: 1. was handicapped for purposes of the statute; 2. was qualified to perform the essential functions of her job; 3. required a reasonable accommodation; and 4. adequately kept Respondent informed of her need for an accommodation while out on leave.  The MCAD also found that Complainant’s finite request for extended leave was a reasonable accommodation so that she could cope with her post-partum depression.

The MCAD found that Respondent’s termination of Complainant without engaging in an interactive dialogue about the request for extended leave was a violation of the employer’s duty under the statute.  Importantly, the Hearing Officer stressed in her decision that an employer is not shielded from liability simply by allowing an employee leave under the FMLA.  Rather, the employer has an affirmative responsibility to engage in the interactive process when the employee is preparing to return from leave.

Notably, there was no persuasive evidence that Complainant’s request for extended leave would cause the Respondent an undue burden on its operations or finances.

This decision highlights the requirement that employers understand the timing of when their obligation to engage in the interactive process is triggered.  Though a company’s obligation is clear when an employee explicitly requests an accommodation, employers must also engage in the interactive process when they have reason to believe an employee needs a reasonable accommodation absent a specific request citing to the statute.

 

 

Attorney McIlvaine Speaks On Developments In Discrimination Law At Massachusetts Employment Lawyer Association

Posted on: December 14th, 2016 by admin

wwa_Andy (1)On October 27, 2016, Bennett & Belfort, P.C. attorney Andrew McIlvaine served as an invited panel speaker at the Massachusetts Employment Lawyer Association.  He spoke on developments in the law on transgender discrimination in connection with his recent victory on behalf of a transgender client in a case tried before the Massachusetts Commission Against Discrimination (“MCAD”).

Attorney McIlvaine discussed the precedential impact of the Tinker v. Securitas Security Services USA case and he shared practice tips on effectively representing claimants in a Public Hearing at the MCAD.  The Tinker case involved a managerial supervisor’s ridicule of a transgendered subordinate and his refusal to respect an employee’s request for gender appropriate pronouns.  Mr. McIlvaine emphasized that Tinker is an important result because it stands for the proposition that such misconduct can indeed rise to the level of actionable employment discrimination.  The emotional distress damages award in the Tinker case, $50,000, is one of the larger “garden variety” emotional distress damages awarded in a case tried at the MCAD.  The MCAD also assessed statutory interest and awarded Mr. Tinker reimbursement of virtually all of his attorneys’ fees.

Should you have any questions on the forefront of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.

Handling Psychiatric Disabilities in the Workplace

Posted on: October 6th, 2016 by admin

2013 David B photo

Bennett & Belfort, partner, David E. Belfort, along with MBA Labor and Employment Section Council Vice-Chair Attorney Meghan H. Slack, co-chaired a September 29, 2016, panel at the Massachusetts Bar Association entitled “Handling Psychiatric Disabilities in the Workplace.”

 The panelists included, Attorney Laurence J. Donoghue of Morgan, Brown & Joy and Attorney Susan Fendell of the Mental Health Legal Advisors Committee.

 The lively discussion covered a wide range of topics impacting employees with psychiatric disabilities and their employers.  The panelists debated wide ranging issues from hiring to separation, including reasonable accommodations, Family Medical Leave Act (FMLA) and violence in the workplace.

Massachusetts Commission Against Discrimination Issues Guidance Relative To Gender Identity Discrimination

Posted on: September 20th, 2016 by admin

mcad

On September 1, 2016, the Massachusetts Commission Against Discrimination (“MCAD”) issued important Gender Identity Guidance  on complying with Massachusetts’ laws forbidding discrimination based on gender identity.

Gender identity has been defined in Massachusetts as meaning “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”  M.G.L. c.4, sec. 7, fifty nine.  The term encompasses, but is not limited to, persons who are transgender.

In support of the guidelines, the MCAD cited the https://www.mass.gov/files/documents/2017/09/zj/2016-08-09-tinker.pdf  case in which Bennet & Belfort, P.C., Attorney Andrew S. McIlvaine, on behalf of his client, Alyx Tinker, obtained a favorable decision in a 2016 transgender discrimination case.  MCAD Docket No. 13-BEM-01906, Decision Of The Hearing Officer (August 9, 2016).  The case is cited by the MCAD in support of the rule that a supervisor’s ridicule of a transgendered subordinate and refusal to respect an employee’s request for gender appropriate pronouns can amount to unlawful employment discrimination.  M.C.A.D. Gender Identity Guidance, pg. 2 (Sept. 1, 2016).

The Guidance also offers instructions on complying with Massachusetts laws forbidding gender identity discrimination in housing, credit, and public accommodation settings.

Should you have any questions on this or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.