Key Developments in Employment Law: Lessons of 2006, Issues for 2007

January 26, 2007

Key Developments in Employment Law:

Lessons of 2006, Issues for 2007

Employment law continues to be an evolving area.  In 2006, there were several significant decisions, including a Supreme Court ruling expanding the scope of anti-retaliation protections. This alert recaps a few of the interesting developments in employment law over the past year and identifies issues to look for in 2007. 

Significant Cases

Burlington Northern & Santa Fe Railway Co. v. White:  In this Supreme Court decision, the Court lowered the threshold for bringing retaliation claims, holding that an employee can recover for unlawful retaliation whenever an employer takes action that could dissuade a “reasonable worker from making or supporting a charge of discrimination.”  As a result of this ruling, employers now need to pay attention before implementing any changes that could adversely affect employees who have recently brought or supported claims of discrimination.

Mammone v. President & Fellows of Harvard College:  In this Massachusetts Supreme Judicial Court opinion, the Court ruled that an employer could terminate an employee for “egregious” misconduct, even if the misconduct is causally related to the employee’s disability (in Mammone’s case, bipolar disorder).  Although the Court upheld the employer’s decision, employers still need to be cautious before terminating any employee with a disability.

Smith v. Winter Place LLC:  Further clarifying the protections for employees, the Massachusetts Supreme Judicial Court held that the anti-retaliation provisions of the Massachusetts Payment of Wages statute cover an employee’s internal complaints regarding perceived wage violations.  Once again, employers need to be careful in how they treat employees who could claim retaliation.

Ortega v. Wakefield Thermal Solutions, Inc.: In this case, a Superior Court judge held that the employer’s personnel manual could form a contract, notwithstanding the manual’s disclaimers disavowing contract status.  As a result of the unsettled nature of the law around personnel manuals, employers should be extremely attentive as to how their manuals are written and applied.

Also note the following:

  • Gasior v. Massachusetts General Hosp.:  The Supreme Judicial Court held that employment discrimination claims survive an employee’s death, and allowed a deceased plaintiff’s estate to recover all damages that would have been available to him had he survived.
  • Lowery v. Klemm:  The Massachusetts Appeals Court held that volunteer workers, who are not “employees” and, thus not encompassed by M.G.L chapter151B, are nonetheless protected against sexual harassment.

Other Significant Developments

Electronic Discovery Changes:  The Federal Court’s rules on e-Discovery, which went into effect in December, require litigants to produce "electronically stored information" in response to document requests, interrogatories and/or subpoenas.  There are now heightened obligations on both employers and their attorneys.  As a result of these changes, employers should be thinking proactively about their electronic systems and make sure that information is preserved once litigation is either threatened or initiated.

New Health Care Law:  Massachusetts enacted a health care law requiring all employers of ten or more employees to provide certain minimum health coverage to their employees. 

Minimum Wage Increases:  As of January 1, the minimum wage in Massachusetts rose to $7.50 per hour, with another increase to $8.00 per hour required as of January 1, 2008.

Pending Issues 

Ledbetter v. Goodyear Tire & Rubber Co.:  This is a Title VII case now pending before the United States Supreme Court.  At issue is whether an employee may bring a discrimination claim based on disparate wages when the pay received during the statutory limitations period is the result of discriminatory pay decisions that occurred previously. This significant issue arises in most cases alleging disparate wages.

Family and Medical Leave Act:  The Department of Labor is in the process of reviewing its FMLA regulations, which have not been revised since 1995.  DOL has invited public comment on specific areas, including attendance policies, light duty, essential functions, and communications between employees and employers.   

If you have questions about any of these issues, please contact Laurie F. Rubin at 617 456 8020 or via email at

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