Employment Legislation Update: Beacon Hill’s Progressive Agenda Marches On

Client Alerts · March 1, 2018

March 1, 2018

One in a series of occasional Prince Lobel updates from Beacon Hill regarding new laws that will significantly impact Massachusetts employers, as well as other legislative proposals that may soon become law.

Last year, we noted that the “progressive agenda is on the march on Beacon Hill.”  This remains the case in 2018, with the following noteworthy legislation about to go into effect or being proposed:

Legislation Going Into Effect in 2018

1)      Pregnant Workers Fairness Act

On April 1, 2018, the Massachusetts Pregnant Workers Fairness Act will go into effect.  The law reinforces some existing requirements and imposes some new types of accommodations for pregnant workers and new mothers.  It requires employers to provide nursing mothers with a place to express milk, “other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.”

Among the accommodations that must be considered are leaves of absence; modification of equipment or seating; temporary transfers to a less strenuous or hazardous position; job restructuring; or light duty assignments.  Some of these accommodations (such as temporary reassignment and job restructuring) are a departure from what has been previously required under Massachusetts law.

In general, the disability accommodation requirements, as applied in other contexts, have been designed to allow an employee to perform the essential functions of her or his job.  The new Act, by contrast, may entitle a pregnant employee to an entirely new job, at least temporarily.

Because the accommodation principles under the new Act are broader than those that have applied in the disability accommodation area, employers should make sure their HR personnel and managers are ready for these new requirements, and that employment policies have been appropriately updated.

2)      Pay Equity
On July 1, 2018, sweeping amendments to the Massachusetts Equal Pay Act (MEPA) will take effect.  MEPA prohibits Massachusetts employers from maintaining gender-based wage disparities.  The key provisions of the amended statute include:
  • It will be unlawful to use salary history to set compensation, and employers will be prohibited from asking applicants their salary histories.
  • Variations in compensation for comparable work will be allowed only if the variations are based on one of the following factors:
      i.        a seniority system (provided that time spent on leave for a pregnancy-related condition or protected parental or family and medical leave does not reduce seniority);
      ii.       a merit system;
      iii.      a system that measures earnings by quantity or quality of production, sales, or revenue;
      iv.     the geographic location in which a job is performed;
      v.      education, training, or experience (but only if these factors are reasonably related to the job); or

      vi.     travel (and only if the travel is a regular and necessary condition of the particular job).

The law also includes a unique affirmative defense, permitting employers who undertake pay equity studies to avoid liability both under MEPA and the Massachusetts general antidiscrimination law.

Significantly, on March 1, 2018, the Attorney General released its much-awaited guidance on compliance with the new pay equity law as well as tools for conducting pay equity studies. We will shortly be releasing a separate, more detailed, alert on the AG’s guidance.

Proposed Legislation

3)      Non-Compete Reform
The idea of limiting non-competition agreements by statute has been hotly debated on Beacon Hill for a number of years.  Two years ago, predictions were that it was going to happen, with House Speaker Robert DeLeo backing a compromise version of the legislation.  This time, the bill that seems to be gathering steam (“An Act Relative to Non-Competition Agreements” (H. 2371)) is proposed by Representative Bradley H. Jones, and would generally:
  • Require employers to pay an employee at least 50 percent of his/her base pay during the non-competition period;
  • Limit non-competes to one year; and
  • Require that non-competes either be presented to an employee prior to commencement of employment, or be accompanied by “fair and reasonable” consideration beyond continued employment.

The proposed law, like most of its failed predecessors, does not apply to non-solicitation agreements that prevent the solicitation of existing customers or employees.  These kinds of restrictions would continue to be governed by common law concepts of reasonableness.

Whether 2018 is finally the year for non-compete reform in Massachusetts is not known, but Prince Lobel will keep you updated on this important legislative initiative.

4)      Limiting Use of Arbitration Clauses

Born out of concerns that have emerged since the Fox News and Harvey Weinstein sex harassment scandals, there are legislative proposals across the country to stop or limit the use of non-disclosure agreements and forced arbitration clauses that tend to limit the public exposure of workplace harassment and discrimination issues.

In Massachusetts, a somewhat more limited legislative initiative was proposed by Representatives Diana DiZoglio and Michelle Dubois in late 2017.  The bill, entitled “An Act to Improve Contract Provisions Waiving Certain Rights” (H. 4058), would limit an employer’s use of arbitration clauses with respect to harassment, discrimination, retaliation, and wage and hour claims.  So far, the proposed legislation relates only to pre-claim arbitration clauses, that is, agreements requiring arbitration of claims that have not yet arisen.   For example, an employment contract that contains a broad arbitration clause might be prohibited; instead, an employer would have to exempt the claims listed above (discrimination, harassment, etc.) from these types of broad provisions.

The press has widely reported that the bill also limits the use of confidentiality agreements that might prevent employees from publicly discussing harassment, discrimination, retaliation, and wage and hour claims.  Our close reading of the bill, however, suggests that it does not clearly address confidentiality provisions.   Nonetheless, the bill is in its early stages, and given Rep. Dizoglio’s publicly reported statements about wanting to limit employers’ “silencing tactics,” it is entirely possible that the bill will be amended to more clearly address and limit the use of confidentiality agreements.  The bill is currently in the Joint Committee on Labor and Workforce Development.

We will continue to monitor and report on these and other legislative developments affecting Massachusetts employers.  If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Daniel S. Tarlow, at 617.456.8013 or dtarlow@princelobel.com, or Laurie F. Rubin, at 617.456.8020 or lrubin@princelobel.com, the authors of this alert.

Update 3/2/2018:  Read our new alert on the Massachusetts Attorney General’s Pay Equity Guidelines here.

About Prince Lobel:  Prince Lobel Tye LLP is a Boston law firm whose 80 attorneys handle matters of local, regional, national, and international reach.  We offer high-quality advice and cost-effective solutions in practice areas and industries including Construction, Corporate, Data Privacy and Security, Domestic Relations, Employment, Environmental, Insurance and Reinsurance, Intellectual Property, Litigation, Media and First Amendment, Nanotechnology, Real Estate, Renewable Energy, Social Media, Taxes, Telecommunications,  and Trusts and Estates.