The EmpLawyer

Massachusetts recently enacted an important change for employers regarding their duties concerning the maintenance of personnel records. The law, passed just days ago, is effective retroactively to August 1.

Bottom line, the new law modifies the state Personnel Records Statute. That statute formerly required the employer simply to provide a copy of a personnel file to an employee requesting to inspect his or her file in writing and to allow employees to make responsive comments to statements contained therein. The new law now requires employers to notify an employee within 10 days of when negative information is entered into his or her personnel record and to allow employees to inspect their files upon notice of such information.

The definition of “personnel records” is broadly defined under Massachusetts law. The definition expressly covers any record that has or may affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.

So, any time an employer places negative information in an employee’s personnel file that can be used to make a decision affecting the employee’s qualification for employment, promotion, transfer, additional compensation, or disciplinary action, the employer must now tell the employee about such information within 10 days of it being placed in the personnel file. In addition, employers, must allow employees to inspect their personnel records each time such notification is provided.

HR professionals generally argue that best practice calls for providing notice to employees regarding negative information such as performance reviews or disciplinary notices, etc. Indeed, in the past, putting negative information in an employee’s personnel file without giving notice to the employee would have provided the employer with marginal if any benefit at all in the event of litigation. The credibility of any negative information is generally suspect if it is included without notice to the employee.

That said, one wonders if the new requirement might encourage some employers, whether lawfully or not, to keep a “shadow file” in addition to the personnel file for working use until they develop more formal documentation for submission to the personnel file and for notice to the employee. Such “shadow” files, or notes to the file without notice to the employee, can often backfire against the employer in litigation and now may well be unlawful if used when making employment decisions.

The law essentially tries to enact best practices. Whether it will encourage poor practice remains to be seen. In the meantime, employers should balance the risks of violation against the increased workload of stringent compliance. Among other things, violations of the new law can result in fines between $500 and $2,500.

The health care reform legislation passed in March included an amendment to the Fair Labor Standards Act that now requires employers to provide breaks to nursing mothers to pump breast milk for a one year period after giving birth to a child. The U.S. Department of Labor recently issued a fact sheet detailing employers’ obligations under this amendment to Section 7 of the FLSA.

Under the amended law, qualifying employees are entitled to a reasonable amount of break time to express milk as frequently as required by the nursing mother. The employer must provide its nursing employee with a private space, other than a bathroom, that is shielded from view, free from intrusion by others, and functional as a space in which to express milk.

This new requirement applies only to employees who are not exempt from the FLSA’s overtime pay requirements. Employers do not need to compensate nursing mothers for breaks taken to express milk, but if they already provide compensated breaks, a nursing mother who uses that time to express milk must be compensated like any other employee.

The U.S. Department of Labor has launched a new investigation of wage law violations related to the disbursement of DOL ordered overtime reimbursement by the Upper Crust pizzeria chain, which has 17 Massachusetts restaurants. Last year, the DOL ordered Upper Crust to pay over $340,000 to 121 workers for its failure to pay at the time-and-a-half rate for work over the 40 hour overtime threshold. This investigation comes on the heels of a lawsuit by former cooks accusing Upper Crust of deducting the compensation for the overtime reimbursement from their paychecks.

The example of Upper Crust should serve as a reminder of the importance of compliance with federal wage and hour laws in the restaurant industry. Restaurants should be particularly careful to maintain thorough records of wage history in order to demonstrate past compliance in the event of a complaint and/or investigation.

A recent Massachusetts Supreme Judicial Court opinion reaffirmed the limits of employer liability for employees’ actions outside the scope of employment. In Lev v. Beverly Enterprises-Massachusetts, the Court affirmed summary judgment in favor of the employer, ruling against the plaintiff who had been hit by a car driven by an intoxicated Beverly employee who was driving home in his own car after meeting at a restaurant with his supervisor to socialize and discuss work-related issues, during which time he consumed alcohol. The plaintiff had brought claims that (i) Beverly was vicariously liable for the employee’s negligence based on their employment relationship and (ii) that Beverly was liable under traditional negligence theories because it owed a duty to the plaintiff.

The plaintiff argued that Beverly should be vicariously liable for the employee’s negligence on the grounds that the employee was acting within the scope of his employment when he became intoxicated while meeting with his supervisor. The SJC rejected this argument, citing the precedent that travel to and from employment falls outside the scope of employment. When he was driving, the employee was no longer serving his employer and the employer is not liable for his actions.

The SJC also held that Beverly owed no common law duty to the plaintiff, rebuffing the plaintiff’s argument that the employer’s special relationship to its employees and ability to exercise control over them carried with it a duty to take reasonable steps to prevent the employee from consuming alcohol and from driving while intoxicated. The Court reasoned that an employer cannot be expected to foresee and take affirmative action to protect all potential plaintiff’s from an employee’s bad conduct. Based on its conclusion that Beverly owed the plaintiff no duty, the Court declined to credit Beverly’s substance, drug, and alcohol abused policy as setting forth a duty of care standard.

Overall, the SJC clearly confirmed the limits on the ability to bring actions alleging an employer’s liability for employees’ actions that harm plaintiffs based on a reluctance to impose “a potentially onerous burden” on employers to monitor their employees’ off-the-job conduct.

The Wage and Hour Division of the U.S. Department of Labor recently issued guidance on the definition of “son or daughter” aimed at members of non-traditional families seeking FMLA eligibility to take approved leave for the birth or adoption of a child, to care for a newborn or newly-placed child, or to care for a child with a serious health condition. This guidance provides an expansive definition of the parent-child relationship by including circumstances where there is no biological or legal parent-child relationship, but the employee has a caregiving relationship, nonetheless.

The FMLA language defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis [. . .].” The DOL guidance states that an employee may stand in loco parentis to a child if s/he has either day-to-day responsibilities to care for the child or provides financial support. The in loco parentis analysis is a fact-specific one that looks to the age of the child, the degree to which the child is dependent on the employee, the amount of support provided by the employee, and the degree to which the employee exercises duties regularly associated with parenthood. Neither the FMLA nor regulations restrict the number of “parents” a child may have for FMLA purposes.

Where an employer is unsure if an employee’s relationship to a child supports FMLA eligibility, the employer may require reasonable documentation of the family relationship, which can be satisfied by a simple statement asserting that the requisite caregiving relationship exists for in loco parentis situations for which there is no legal documentation.

In Skinner v. Salem School District, Judge Laplante of the District of New Hampshire recently considered whether one may bring Title II ADA employment discrimination cases based on disability discrimination or if such claims must be brought under Title I. The employer school district moved for a judgment on the pleadings based on its argument that Title II of the Americans with Disabilities Act could not be used by its former employee to bring an employment discrimination claim. The Court denied the employer’s motion for lack of support for the principle that the statute clearly excludes employment discrimination claims.

The Court commented on the current circuit split on this issue. The 11th Circuit has held that the DOJ’s regulatory construction allowing ADA employment discrimination cases deserves sufficient deference to permit such cases to go to trial. The 9th Circuit has rejected this view, stating that the overall construction and purpose of the ADA forecloses the view that Congress intended Title II to apply in the employment context. The 1st Circuit has not taken a clear view on the issue. As a result, Judge Laplante refused to grant the motion for judgment on the pleadings due to the ambiguity of the law as it currently stands, even though he expressed an affinity for the 9th Circuit view. This leaves the door open for ADA employment discrimination cases to proceed to trial in the 1st Circuit – at least until the “ambiguity” is resolved by a Supreme Court or circuit ruling on the issue.

A federal judge in New York certified a class in a pending class action against Hofstra University when it ruled that Hofstra student-employees had sufficiently demonstrated a factual nexus between the named plaintiffs to an FLSA suit and the proposed putative class members to support a determination that they were subject to Hofstra University’s common policy of classifying undergraduate and graduate assistants as exempt or otherwise excluded from provisions of the Fair Labor Standards Act (FLSA).  Hofstra’s policy allegedly resulted in the practice of permitting subminimum wage labor and/or unpaid overtime compensation to student-employees in violation of the FLSA, thereby justifying the class action against the university.

A recent opinion by the Supreme Court clarified the time limit for bringing workplace race discrimination claims based on a disparate-impact theory of discrimination. In a unanimous opinion issued on May 24, 2010 in Lewis v. City of Chicago, the Court held that African-Americans who had taken the exam to become Chicago firefighters and earned scores in the “qualified” range, but not the “well qualified” range brought a timely disparate-impact claim because their claim was within the deadline of when the City applied those classifications, even if it would have been time-barred as to when the City first established the classification.

The Court highlighted that Title VII prohibits employers from using a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin. The Court found that the City of Chicago had used the classifications from its 1995 firefighter exam each time that it selected applicants to advance from the eligibility list, which it did multiple times during the subsequent years. When it “used” the list, the City committed a new discriminatory act. Because the plaintiff class filed discrimination charges with the EEOC within 300 days after one such unlawful practice occurred, it was not time-barred under the Title VII requirements for a timely complaint.

The opinion noted that the effect of this opinion could allow for workplace race discrimination lawsuits challenging employment practices that had been in place for years, during which time the employer’s evidence of the business necessity behind the challenged policy might become diluted. Nevertheless, the Court found this to be the meaning intended under the disparate-impact section of Title VII of the Civil Rights Act of 1964 in 42 U.S.C. §2000e-2(k)(1)(A)(i).

A common employment application question may soon become a thing of the past in Massachusetts, as the House voted 138 to 17 to pass legislation banning employment applications from inquiring into criminal history, and taking a stand to “ban the box” as activists have advocated for years. Briefly, the House approved a provision that would seal records of felony convictions, making them unavailable to potential employers, after 10 years. The provision would also seal records of misdemeanor convictions after 5 years. In addition, the House voted to “ban the box,” adding a provision that would ban employers from including questions in their job application forms about a person’s criminal background.

The manager and owner of French Gourmet, a San Diego bakery, were arraigned in federal district court on April 21, 2010, on charges that they conspired to engage in a pattern or practice of hiring and continuing to employee unauthorized workers, a misdemeanor, in addition to 14 felony counts, including making false statements and shielding undocumented alien employees from detection. If convicted, the manager and owner face a maximum of five years in prison and a $250,000 fine on each count. The indictment also seeks criminal forfeiture of proceeds gained from the restaurant’s unlawful activities. According to the indictment, the resaurant’s managers certified on the firm’s Employment Verification Forms (I-9) that the documents they examined appeared to be genuine, and to the best of the their knowledge, the employees listed on the I-9 were eligible to work in the United States. The managers then put the illegal workers on the company’s payroll and paid them by paycheck until they received letters advising them that the Social Security numbers of the employees did not match the names of the rightful owners of the Social Security numbers. The indictment alleges that the restaurant then conspired to pay the undocumented employees in cash until the workers produced a new set of employment documents with different Social Security numbers. The criminal case against the restaurant and its managers is supported by employee and payroll records seized by ICE agents in a May 2008 search of the restaurant, which also resulted in the arrest of 18 undocumented workers. The lesson to employers: ensure compliance with I-9 requirements and establish an I-9 policy that includes completion and retention of Form I-9 for all employees, a strict policy against the employment of individuals who do not provide the proper eligibility documents for Form I-9, periodic reverification of employees, I-9 training for all employees who are part of the hiring process, and regular auditing of employees’ status.