While employee reviews have obvious benefits from a Human Resources standpoint, implementing a policy that ensures employee reviews are well-crafted and accurate today, can go a long way toward insulating the company from potential liability tomorrow. Courts have consistently held that discharged or transferred employees can use performance reviews to show that they were treated differently based upon their membership in a protected class. In such “disparate treatment” cases, a performance review may establish or contradict that: 1) the employee was qualified for a position; and 2) someone outside of the protected class with similar qualifications was treated more favorably.
When deciding whether an employee was “similarly situated” to someone who may have been treated more favorably, a court will consider “whether a prudent person, looking objectively at the plaintiff and her comparator would think them roughly equivalent, and similarly qualified for the position.”
Employee reviews may be used as a tool to create evidence of work experience, or lack thereof. For example, if Employee A completed six significant projects in 2018, but Protected Employee B, who held a similar position, only completed three significant projects, employee reviews documenting the work experience of Employees A and B may be … Keep reading
Earlier this week, the U.S. Supreme Court declared that a new test applies for pregnancy discrimination. In Young v. UPS, the Supremes decided that in pregnancy discrimination actions under the federal Pregnancy Discrimination Act (“PDA”), the long-standing McDonnell-Douglas burden shifting test does not apply. Employers should ensure their policies, especially any light duty policies, comply with the Young decision.… Keep reading
For years, the Massachusetts Maternity Leave Act (“MMLA”), M.G.L. c. 149, §105D, only applied to female employees by its literal terms. The Massachusetts Commission Against Discrimination (“MCAD”), the agency tasked with enforcing the MMLA, has taken the position that if the MMLA was applied literally, it would be unconstitutional, as it would give female employees greater employment rights than men. Although initially intended to protect women who were giving birth to children, since the MMLA also protects women who adopt children, it is not about the physical “disability” associated with giving birth to a child. Thus, the argument goes, men should also be covered by its protections. The conflict between the literal terms of the MMLA and the MCAD’s guidelines for interpreting the MMLA created difficulty for employers who were not subject to the Family and Medical Leave Act (which entitles eligible employees, regardless of gender, to up to 12 weeks of unpaid leave for the birth or adoption of a child).
On his last day in office, Governor Deval Patrick settled the matter once and for all, by signing into law a bill that expressly expands the protections of the MMLA to all employees, regardless of gender.… Keep reading
Because ’tis the season to give, The In-House Advisor would like to give in-house counsel the following reminders so as to limit their companies’ holiday exposure:
Tip 1: Religious discrimination and accommodations
As we all know, while the “holiday” season in December often refers to Christmas, there are many other religious holidays celebrated by workers, both now and throughout the year. In-house counsel may wish to take the opportunity now to advise their companies’ managers to allow, and not interfere with, an employee’s observance of religious obligations. For purposes of employment discrimination laws, the definition of “religion” is much broader than one might think and is not limited to major, organized religions. Rather, “religious beliefs” protected by discrimination laws is defined as:
Moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.
It would behoove employers to carefully consider scheduling of work on holidays and planning and scheduling of holiday celebrations with an eye towards religious considerations. Likewise, being mindful of the religions practiced by company employees may avoid issues with respect to holiday parties. For instance, depending upon the make-up of your workforce, scheduling a party for Friday night … Keep reading
Yahoo!, Twitter, Facebook and every possible media outlet have been aflutter with praise and criticism since newly appointed Yahoo! CEO Marissa Mayer announced to Fortune magazine that she is pregnant and taking a “few weeks” of maternity leave and will be “working throughout it”. Though this may be heartening for Yahoo! investors, the typical employer is reminded that its employees are not Mayer and are not likely to follow in her footsteps. Rather, employers must remember that there are federal and state laws that require employers to provide protected leave for many of their employees. Here are five important reminders:
Reminder #1: “Leaves” require a return to work.
The term “leave” is a bit misleading, as the key is “protected” leave, which is the right to take a leave of absence and return to his or her job. Protected leave also means that during the leave, no work is to be done or requested of the employee.
Reminder #2: Leaves may be doubled or tripled for multiple births.
In Massachusetts, a full-time, female employee who has worked at least three (3) consecutive months as a full-time employee or has completed the “initial probationary period set by … Keep reading
A recent decision by a full panel of the Massachusetts Commission Against Discrimination (MCAD) emphasizes the need for supervisors to understand their duty to act to ensure that unlawful harassment allegations are addressed and that any such conduct ceases.
Since 1998, two cases decided by the U.S. Supreme Court, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, enable employers to avoid liability for employee claims of sexual harassment based on a hostile work environment brought under Title VII of the Civil Rights of 1964 if: (1) the employer took reasonable care to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided. Employer policies, training for its supervisors and investigative processes are taken into consideration in determining whether there were sufficient preventive or corrective opportunities provided to employees. If the conduct, however, results in a tangible employment action such as a demotion or termination, then the Faragher/Ellerth affirmative defense is unavailable to the employer.
Although many states have not adopted this defense, a few states have advanced the law at the state level, at least in theory, to permit employers … Keep reading
In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records. Here in Part 3 and the last part of this series, I address the process of the handling of the documents.
Step 5: Handling Documents with CORI
Criminal records information obtained from any source is confidential, and employers must take precautions to insure that such information is protected from disclosure. Because of the highly confidential nature of criminal records, the number of individuals who are authorized to request, access, receive and review such information must be limited, and there are strict procedures for handling, storing and destroying criminal records information. The new regulations provide for controls by:
- Requiring the designation of a CORI Representative for an employer;
- Requiring a Secondary Dissemination Log to track all distribution of CORI;
- Limiting employer registration for CORI to one year increments; and
- Limiting the validity of employee or applicant Acknowledgement Forms to 12 months from the execution date or the end of employment, whichever is sooner.
… Keep reading
In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012. This post addresses the next two steps in this process.
These blog posts also address when an employer conducts its own CORI checks. However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks. If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.
Step 3: Notifying Employee/Applicant of CORI
Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.
If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:
- notify the individual in writing of the potential adverse employment action;
- provide a copy of the CORI, identifying
… Keep reading
Massachusetts enacted broad reforms to its Criminal Offender Record Information (“CORI”) laws in August 2010. These reforms emphasize existing non-discrimination requirements and provide new requirements for accessing records through the on-line system (“iCORI”), as well as using and maintaining criminal records.
The first part of the CORI reform laws became effective in November 2010, requiring employers to refrain from asking employees and job applicants to provide their criminal record history. The second part became effective May 4, 2012, requiring employers to follow certain procedures for obtaining and handling criminal records information when screening existing employees and applicants, and providing employees/applicants with certain due process rights before an employer can make an adverse employment decision based on such records.
The CORI system is complicated, and employers can easily and unknowingly run afoul of its mandates and prohibitions. To help you avoid exposure to these risks, I have broken down the CORI process into five steps. The first two steps are detailed in this post and the remaining steps will be explored in separate posts in the coming weeks.
Step 1: Registering and Preparing for CORI Access
Employers must register with the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) to … Keep reading
It’s never easy to navigate the legal requirements when an employee has a medical condition or disability. One of the many complications is providing a “reasonable accommodation,” a process that often requires significant time and careful consideration of how and what medical information can be obtained and scrutinized.
In providing accommodations, some employers hesitate to relieve employees from certain “essential job functions” temporarily while the employee is recovering from a medical condition, or while it’s unclear how long a condition will last. Based on the First Circuit’s decision in Jones v. Walgreens, Inc., et al., however, relieving an employee temporarily from certain “essential job functions” does not require the employer to permanently eliminate those essential job functions from the employee’s job.
In Jones, plaintiff-employee Jones, a Walgreens store manager, had been on several leaves of absence from January 2004 to October 2005 after suffering a knee injury when she slipped on ice outside Walgreens’ office. In her second leave of absence, Jones indicated that she hoped to return to work with “reasonable accommodations.” Walgreens welcomed her back to work with some physical lifting, bending, squatting and twisting limitations. Twenty-two months later, in October 2005, Walgreens offered her … Keep reading