Legal Highlights for Massachusetts Employers in 2018

By Skoler, Abbott & Presser, P.C.

December 21, 2018

As New Year’s approaches, many of us reflect on the year that was, on our biggest achievements, proudest moments, trials, tribulations and other milestones.  Whether good or bad, we consider what we learned from these events, file those lessons away, and prepare ourselves for the start of a brand new year, always hoping to do better, feel better and somehow be better than we were last year.  Of course, it is an imaginary denouement – there is no magical clean slate.  But the ritual of these annual reflections can be cathartic, helping us to purge the bad and focus on how we can achieve more of the good.

Businesses are no different.  They too can benefit greatly from an annual review of sorts, and not just about dollars and cents, but about team dynamics, supervisory challenges and employee relations as well.  At Skoler Abbott, our business is to learn and help our clients comply with the myriad of laws that govern the workplace.  So when we reflect on the past year, we ask ourselves how the law has changed for our clients, what new challenges were introduced and what new guidance we can offer to help employers navigate these ever-changing waters.

On January 15, 2019, at 12:30 p.m., Skoler Abbott Attorneys John Gannon and Erica Flores will be presenting the results of our year-end review in an informative webinar, “Employment Law Update:  Was 2018 A Bang or A Bust for Employers?”  You can register for this webinar here:

http://www.anymeeting.com/PIID=ED57D986854D31

In the meantime, here’s a preview of some of the highlights – and, for the record, we think 2018 was a bust.

The Not-So-Grand Bargain

In June 2018, the Massachusetts legislature passed a bill known as the Grand Bargain.  Designed to resolve a number of legislative and ballot proposals in one fell swoop, the Grand Bargain increases the minimum wage every year for the next five years, gradually eliminates mandatory overtime for retail employees who work on Sundays, establishes an annual sales tax holiday weekend and creates a new paid family and medical leave program to be administered by a new state agency.  While employees can be required to pay a substantial portion of the payroll tax that will fund the new program, employers will still face substantial new burdens under the new law, including the obligation to permit leave prior to any approval of an employee’s claim by the state, to continue health benefits during any covered leave and to reinstate employees to the same or an equivalent position after any leave, which can last as long as 26 weeks and can also be taken intermittently.  We’ll know a lot more about how the program will work when the new Department of Family and Medical Leave publishes its proposed regulations (which it is supposed to do by the end of March 2019), but we suspect that this program will be most burdensome for small businesses, who can least afford it.

Non-Compete Reform

Also this year, the Massachusetts legislature passed comprehensive non-compete reform.  The law substantially narrows the circumstances under which employers can enter into non-competition agreements with employees, limits all such agreements to a maximum term of one year, and requires that non-competitions agreements entered into with existing employees be supported by consideration beyond continued employment.  The law also mandates that courts apply certain presumptions that have the effect of narrowing the scope of services and geographic territories employers can seek to protect with a non-compete.

Pay Equity Becomes Law

The amended Massachusetts Pay Equity Law took effect this past July, imposing significant responsibilities on businesses to ensure equal pay to employees of different genders for “comparable” work.  And the first lawsuit alleging violations of the amended law was filed just a few days later.

Most importantly, the amended statute provides a broader definition of “comparable work” and limits the acceptable reasons for paying people of different genders differently to just six – bona fide seniority, merit and productivity systems, geographic location, job-related education, training and experience, and required travel.  It also prohibits employers from seeking information regarding the salary history of job applicants.  Employers hoping to reduce their risk of liability under the Pay Equity law can earn the protection of a statutory affirmative defense if they complete a “good faith” self-evaluation of their pay practices, but they must demonstrate “reasonable progress” toward eliminating any wage differentials in order to avoid liability completely and the defense is only good for three years.

Pregnancy and Related Conditions Are Now Protected Classes

In April 2018, the Pregnant Workers Fairness Act became law in Massachusetts.  In addition to adding pregnancy and conditions related to pregnancy (including lactation) as protected classes under the state’s anti-discrimination law, the statute also requires employers to provide reasonable accommodations for an employee’s pregnancy or condition related to pregnancy unless doing so would pose an undue hardship to the business; prohibits employers from taking adverse action against or refusing to hire someone because she needs, requests, or uses such an accommodation; and prohibits employers from requesting documentation to support certain types of accommodations – specifically, more frequent breaks, seating, lifting restrictions and a private, non-bathroom space to express breast milk.

Employers Gain Some Flexibility to Deny Accommodations for Disabled Employees

In a rare bright spot for employers this year, the First Circuit Court of Appeals issued a decision in a case about the lengths employers must go to accommodate disabled employees under the Americans with Disabilities Act.  The decision affirmed that an employer who grants an accommodation they are not legally required to provide does not bind itself to continue the accommodation indefinitely.  Where an employer agrees to temporarily eliminate an essential job function, for example, or to grant an indefinite period of leave, the employer can lawfully roll back the accommodation later.  As the Court explained, “[t]o find otherwise would unacceptably punish employers [for] doing more than the ADA requires, and might discourage such an undertaking on the part of employers.”

As you can see, a lot has changed for employers over the past year.  Be sure to sign up for our webinar on January 15, 2019.  We will discuss these topics and give you a chance to ask us questions about how these laws and cases will impact your business in 2019.