In an exertion to keep our audience abreast of latest developments and lawful developments, we summarize under what is new in the legislation (both of those in legislation and in the circumstances) and provide a “heads up” pertaining to what to be expecting in the coming months.  We hope you uncover this helpful.

What’s New

Motion to Compel Arbitration Denied Above Disregard of the Staff File Regulation

Disputes pertaining to the enforceability of arbitration agreements have led to lots of hotly contested authorized battles masking a extensive array of authorized theories, e.g., waiver, lack of thought, unconscionability, violation of public coverage, and so forth.  In a latest victory for staff members, an employer’s lax reaction to a statutory request for a staff report led to a discovering of waiver by the employer, and the denial of a motion to compel arbitration.

Underneath the Massachusetts Staff Report Law, M.G.L. c. 149, § 52C, an personnel shall be specified a duplicate of his or her Personnel Document inside 5 enterprise days of a written ask for.  In Hernandez v. Universal Safety Support, LLC, No. 2181cv00335 (Middlesex Tremendous. Ct. Aug. 23, 2021) (Frison, J.), the employer failed to deliver the staff with a copy of the arbitration arrangement in response to her Staff History request.  What’s more, the employer did not disclose its intent to search for enforcement of the arbitration settlement at any time right up until the issue was filed in court.  Specified the conditions, the court held the employer’s failure to disclose the arbitration settlement acted to waive the employer’s legal rights thereunder, and the employer’s motion to compel arbitration was denied.

And Talking of the Personnel Data Law… 

Massachusetts’s greatest courtroom, the Supreme Judicial Courtroom (“SJC”), a short while ago dominated in Meehan v. Professional medical Data Know-how, Inc., 177 N.E.3d 917 (Mass. 2021), that an staff who was terminated for exercising his statutory legal rights less than the Personnel File Legislation to file a penned rebuttal may possibly, indeed, go after a assert for wrongful termination in violation of general public coverage, reversing the dismissal of plaintiff’s declare by the decrease courts.

In the context of an at-will work connection, the basis of a “wrongful termination” claim is typically misunderstood.  In limited, there is no generalized declare for wrongful termination.  The source of authorized legal rights and protections for an at-will staff might be rooted in statute (e.g., our point out and federal anti-discrimination, payment of wages and whistleblowing legislation) or below the typical regulation (e.g., in violation of the covenant of fantastic religion and good dealing or of general public policy).

Courts in Massachusetts have extended acknowledged a popular-law exception to the at-will doctrine that permits personnel to request redress for asserting a legally certain correct, refusing to do what the law forbids, carrying out what the regulation calls for, and other vital general public deeds.  Whilst the SJC’s keeping in Meehan is essential from a broader public coverage standpoint, clarifying that an employer may well not simply just terminate an personnel for working out a authorized right, and that general public plan exemption extends to the training of legal rights under the Personnel File Regulation, it is well worth noting the abnormal procedural posture of this situation.

In Meehan, at least for uses of the Defendant’s Motion to Dismiss, there was no dispute at to the reason for the termination conclusion (i.e., the act of distributing a prepared rebuttal to a performance assessment), and the articles of prepared rebuttal was not at difficulty.  This is atypical.  It is far much more prevalent that both equally the reasons for the termination and the written content and compound of the rebuttal are central concerns in the litigation.

Appropriately, as gratifying a victory this could be staff members, to make use of it, staff want to progress cautiously and strategically.

Retaliatory Investigations:  When the Accuser Gets the Accused

As we have mentioned previously in our newsletters, what constitutes an “adverse work action” in discrimination and retaliation instances is not limited to discrete acts resulting in immediate economic harm, this sort of as termination or demotion.  Relatively, the protections versus unlawful discrimination also encompass employment actions that adversely influence “terms, situations and privileges of employment.” Yee v. Mass. Condition Police, 481 Mass. 290, 295 (2019) see also Higher Court Reinforces Discrimination is About A lot more Than Money.

In the context of retaliation conditions, the U.S. Supreme Courtroom has designed it clear that an adverse act could contain any carry out that “could very well dissuade a sensible employee from” engaging in the secured activity, this kind of as the filing of a discrimination assert.  See Burlington North & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

Sad to say, as illustrated a modern situation from the U.S. District Court of Massachusetts, Stuart v. Town of Gloucester, 2021 WL 4477476 (D. Mass, Sep. 30, 2021), workers who arrive ahead with fantastic religion interior grievances can in some cases come across themselves the matter of retaliatory investigations.  Whilst the plaintiff in Stuart was ultimately unsuccessful on various of his lawful claims, the Courtroom did conveniently admit that an inside investigation released on the heels of the plaintiff’s safeguarded exercise (right here the physical exercise of his To start with Amendment rights) might constitute an adverse work action, noting that an “internal investigation into Plaintiff’s carry out can also qualify as an adverse work action because even the danger of an investigation by one’s employer could deter an everyday employee from generating problems or usually working out their [legal] legal rights.”

Investigating whistleblowers and individuals who elevate complaints is an increasingly prevalent website page out of management-counsel’s playbook, and navigating such investigations is treacherous—having the reward of seasoned counsel to support could prove vital.

Joint Employer Investigation underneath Massachusetts Wage and Hour Legal guidelines

Underneath Massachusetts wage and hour guidelines, employers are subject to rigorous liability and there are strong treatments obtainable for workers who have been misclassified as impartial contractors, or if not deprived of attained wages, such as mandatory treble damages and attorneys’ expenses.  For thriving personnel, owning a “million-dollar” judgment in hand for wages owed is of minor solace when the organization is bankrupt and/or there is no in any other case feasible path to collection.  Appropriately, one particular strategic problem, especially in scenarios exactly where there are issues about employer solvency, is no matter if a lot more than a person entity can be held liable as the “employer” under a joint employer examination.

In Jinks v. Credico (United states of america) LLC, 177 N.E.3d 509 (Mass. 2021), the SJC a short while ago addressed the good regular for determining joint employer standing beneath Massachusetts wage and hour regulations.  In small, the SJC adopted the “totality of the circumstances” normal utilized below Federal wage and hour legislation, guided by a beneficial framework of four variables.  These factors involve whether or not the alleged employer (1) experienced the electricity to hire and hearth the worker (2) supervised and managed personnel function schedules or situations of employment (3) identified the amount and strategy of payment and (4) managed employment information.

Be mindful, nevertheless, that the SJC cautioned that these four elements are not “etched in stone and will not be blindly used,” and that no one factor is dispositive.

What is Coming

The Timing and Scope of Necessary Treble Harm Awards less than the Massachusetts Wage Act

The Massachusetts Wage Act, G.L. c. 149, § 148, necessitates prompt, whole payment of all gained wages.  Workforce deprived of well timed payment of this kind of wages are entitled to a required award of treble damages, furthermore attorney’s expenses. Id., § 150.  Presently pending just before the SJC are two conditions that will further make clear the timing and scope of destruction awards less than the Wage Act.

Reuter v. Metropolis of Methuen, SJC-13121

In Reuter, the SJC will decide whether—when wages are compensated late but before the personnel data files suit—an personnel is entitled to trebling of the whole quantity of untimely compensated wages or is minimal to recovering treble the desire accrued from the hold off in payment.

Devaney v. Zucchini Gold, SJC-13176

The Massachusetts Wage Act and the Federal Reasonable Labor Expectations Act (“FLSA”) are related but not identical, e.g., the FLSA does not present for mandatory trebling of damages. The dilemma for the SJC in Devaney is no matter if, when an employer violates the FLSA but not the Wage Act, the Wage Act’s necessary treble damages use. Quite a few reduce courts have answered indeed, and Devaney provides an possibility for Massachusetts’ optimum courtroom to response this question definitively.