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

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

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.

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

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.

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.