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Massachusetts ®

What’s Inside

Part of your Massachusetts Employment Law Service

Ralph F. Abbott, Jr., Editor, and Susan G. Fentin, Marylou V. Fabbo, Associate Editors Skoler, Abbott & Presser, P.C.

Vol. 21, No. 7 October 2010

Employee Benefits

Watch out for health care reform provisions that take effect this year . ...................... 3


How new legislation affects the way you conduct criminal background checks . ............ 4

Wage and Hour Law

Want workers to pay for company equipment they lose? Think again .................. 5

Agency Action

OSHA launches new website devoted to whistleblower protection ............................... 6


Just because an employee claims you retaliated doesn’t mean you did . ....................... 7

On Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. policies/204.html • HR Sample Policy  Respectful Workplace, policies/220.html © M. Lee Smith Publishers LLC


status pf, leg, doc, disc, el, eer, supiss, priv

When is a personnel file not a personnel file? by Susan G. Fentin The Massachusetts Legislature, in its great and glorious wisdom, was especially busy this summer. One item on its agenda was the long-heralded statutory reform of the Criminal Offender Record Index (CORI), which will affect employers’ ability to obtain information on an applicant’s or employee’s criminal background. (For more information, see the CORI reform article on page 4.) But perhaps more significant was an amendment that was buried in more than 100 pages of what is ironically called an “economic development bill.”

No such thing as a ‘secret supervisor file’ We’ve always advised employers that if faced with a request for an employee’s personnel file, HR should go to the employee’s supervisor and ask for the “secret supervisor file.” That’s because under the Personnel Records Act, Mass. Gen. Laws ch. 149, § 52C, “personnel record” is defined very broadly and includes “any record that has or may affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.” The only exception is information of a personal nature about someone other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy. This exception has allowed employers to exclude

investigations of sexual harassment complaints from an employee’s personnel file and black out employees’ names from other documents if their privacy would be violated. But the bottom line is, at least in Massachusetts, there can be no “secret supervisor file.” Under the Personnel Records Act, essentially any document the supervisor would review as part of his evaluation of the employee is part of the “personnel record” and should be produced if the employee makes an official request, in writing, for his personnel file. Until recently, unless a formal request was received, it was OK for the supervisor to keep his notes in a separate folder in his desk and not in the official HR file.

Economic development, Massachusetts style! On August 5, Governor Deval Patrick signed the economic development bill, which, among its many other provisions, amended the Personnel Records Act. The amendment, which took effect August 1, requires employers to notify an employee within 10 days of the employer “placing” in the employee’s personnel file any information that “is, has been used, or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or the possibility that the employee will be subject to disciplinary action.”

Skoler, Abbott & Presser, P.C., is a member of the Employers Counsel Network

Massachusetts Employment Law Letter The amendment doesn’t change the definition of “personnel record,” which, as we have noted, is very broad in Massachusetts. But it does potentially impose additional obligations on employers. (How this is supposed to stimulate economic development is beyond us!) In the past, employers simply had to honor an employee’s written request to examine or receive a copy of his personnel file within five business days and allow him to request changes to documents in the file. If the employer didn’t agree with the changes and denied the request, the employee was entitled to write a rebuttal. The rebuttal then became part of the file and had to be sent to any third parties requesting and receiving the file. That’s still true, but the new “notice” requirement creates an additional burden of uncertain scope. Of course, employers with good HR practices already tell employees when they are issuing a formal warning or performance memo and give the employee a copy of the document. But what about a supervisor’s note to himself stating that he observed an employee away from his work area and reminded him to get back to his desk? The supervisor might want to keep the note for future reference, documenting the problem in a timely manner in case it becomes a recurring problem. Does the note trigger the employer’s “notice” obligation under the amended statute? A broad reading would appear to indicate that the employer has an affirmative obligation to notify the employee of its observation.

Does the legislature even read these things before voting? We suspect that the legislature didn’t understand the impact of this amendment. We’re guessing it thought that if something was going to be put in the employee’s official HR file, he should be told about it if it could negatively affect his employment. But that’s not what the statute says. We think the legislature didn’t understand that “personnel record” is a broad term under the existing statute and that it instead thought that the “personnel record” was a physical location where documents could be “placed.” Or maybe the legislature did understand. Who knows? Meanwhile, employers are forced to decide how to comply with a statute that suddenly has far-reaching implications. The change includes one meaningless victory for employers: Employees are now entitled to inspect their personnel records only twice per year. However, that twice-a-year limit doesn’t apply when the employee


receives notice about negative information placed in his personnel record. If every supervisor note about an employee’s job performance or conduct is covered by this amendment, you can expect that (1) supervisors will stop taking notes (bad idea) or (2) the required notice about those notes will trigger repeated reviews of personnel files, creating a line out the door of the HR office.

Balancing act Employers may need to walk a fine line, balancing the risks of violation against the possible consequences of compliance. Violations of the personnel file statute carry fines ranging from $500 and $2,500. The good news is that there’s no private right of action for violations of this part of the statute. The attorney general’s office is responsible for investigating violations and issuing fines. Although an employee can sue for clarification of what constitutes a “personnel record,” neither the court nor the employee can force the attorney general to issue a fine. But that’s small consolation. What to do? Clearly, if a significant issue that is worth documenting arises, it’s worth communicating to the employee. We recommend that your communication include some sort of notice that the information will become part of the employee’s personnel record. That includes all disciplinary notices, performance evaluations, and even the employment application. A simple sentence somewhere on the application should be sufficient to comply with the statute. As far as notifying an employee about negative “information,” a supervisor who is doing his job will be counseling the employee about most issues that he is documenting and giving him a record of that counseling with a statement that the document may become part of his personnel record. Maybe that will encourage supervisors to take more care with their documentation, which would be a good thing. Or maybe it will mean that supervisors will refrain from writing anything down at all, which could make defending against claims of discrimination more difficult. Either way, if you’re looking for guidance on how best to comply with this new statute, you should definitely consult your labor and employment counsel. Susan G. Fentin is a partner at the firm of Skoler, Abbott & Presser, P.C., and associate editor of Massachusetts Employment Law Letter. She can be reached at (413) 737-4753 or ✤

October 2010

Massachusetts Employment Law Letter

employee benefits September 2010 federal leg, hi, empben, taxes article

Health care reform provisions you need to worry about Have you been pulling your hair out for the past several months trying to determine what health care reform means for your organization? This article will provide you with a good starting point by outlining many of the major provisions of the health care reform package (the Patient Protection and Affordable Care Act and the Health Care and Education Affordability Reconciliation Act of 2010) that go into effect this year or in 2011.

2011.) A crucial consideration to whether these reforms apply to your plan depends on whether your plan is grandfathered. A grandfathered plan is a group health plan that was in effect on March 23, 2010, and has not made any changes that would cause it to lose its grandfathered status. The following insurance reforms apply to all plans, including grandfathered plans: •

Elimination of lifetime limits. Plans are prohibited from imposing lifetime limits on “essential health benefits.”

Restriction of annual limits. Plans may place restricted annual limits on “essential health benefits” only until January 1, 2014, when annual limits on such benefits are completely prohibited.

Prohibition on rescissions. Plans may not rescind coverage in most circumstances. They may do so only in cases of fraud or intentional misrepresentation.

Coverage for adult dependent children. Plans that cover dependent children must extend coverage to adult children until they turn 26. Plans may not Grandfathered plans aren’t exrescind coverage in empt from this most circumstances. requirement, but until January 1, 2014, they don’t have to extend such coverage to dependent children who are eligible for other employer-sponsored coverage.

Elimination of preexisting condition exclusions for children. Plans may not impose preexisting condition exclusions or limitations on health plan participants who are under the age of 19.

Effective in 2010 Small-business tax credits. Beginning this year, certain small employers that contribute at least 50 percent of their employees’ health care premiums are eligible to receive tax credits. The credits are available to small businesses with no more than 25 employees, and the amount of the credit is based on the number of employees and the average annual employee compensation. Small businesses could receive credits of up to 35 percent (or up to 50 percent starting in 2014) of their premiums. Early Retiree Reinsurance Program. The U.S. Department of Health and Human Services has already started accepting applications for the Early Retiree Reinsurance Program created by the new health care reform legislation. The program will provide $5 billion for employer health plans that offer coverage to early retirees who are ages 55 to 64. Reimbursement will be made to plans on behalf of early retirees and their spouses, surviving spouses, and dependents for up to 80 percent of certain claims between $15,000 and $90,000. The program will end in 2014 (unless the $5 billion program limit runs out before then), and assistance will be offered on a first-come first-served basis. Tax exclusion for coverage of adult children. The health care reform legislation expands the income tax exclusion for employer-provided health coverage to include employees’ children who are under age 27. The legislation did this by extending the definition of “dependent” to include children who will not turn 27 at any time during the applicable tax year. Adoption assistance. The legislation also increases the adoption tax credit and the adoption assistance tax exclusion from $10,000 to $13,170.

The following insurance reforms apply only to new plans and do not apply to grandfathered plans: •

Preventive care coverage. New health plans must cover certain evidence-based preventive care without cost sharing. In other words, plans can’t charge patients copayments, coinsurance, or deductibles for such services (if a network provider supplies the services).

Nondiscrimination rules. The nondiscrimination rules for “highly compensated” employees that previously applied only to self-insured health plans will now apply to fully insured group health plans.

Patient protections. Nongrandfathered plans are also subject to requirements relating to an individual’s choice of health care professional (including primary care providers and pediatricians) and access to obstetrical and gynecological care and emergency services.

Claims and appeals process. Plans are required to create and maintain a claims and appeals process

Health insurance reforms The legislation contains several health insurance reforms that are effective for the first plan year beginning on or after September 23, 2010. (For calendar-year plans, the reforms will generally be effective on January 1, October 2010


Massachusetts Employment Law Letter

that includes not only an internal review but also an external review. The new process will allow individuals to appeal decisions made by their insurance companies or health plans.


Miscellaneous other provisions. Nongrandfathered plans will also be subject to requirements regarding cost reporting and rebates, transparency, and ensuring quality of care.

by Michael B. Leahy

status back, hiring, eer, ea, crim, el

CORI reform

Effective in 2011

On August 6, Governor Deval Patrick signed the Criminal Offender Record Index (CORI) reform bill, affecting the way employers in Massachusetts deal with the criminal histories of both potential and current employees. Most of the changes don’t take effect until early in 2012.

There are several other health care reforms that become effective in 2011, and several are outlined below.

What the bill means to you

Health care account changes. The health care reform legislation limits distributions for qualified medicine under health savings accounts (HSAs), Archer medical savings accounts (MSAs), health flexible spending arrangements, and health reimbursement arrangements to prescription drugs and insulin. Additionally, the legislation increases the additional tax on distributions from HSAs and Archer MSAs that aren’t used for qualified medical expenses to 20 percent of the disbursed amount. Simple cafeteria plans for small businesses. The health care reform legislation provides certain eligible small employers with a new safe harbor from the nondiscrimination rules for cafeteria plans. To be eligible for the safe harbor, you will have to meet certain requirements.

There are several provisions that will affect your business, and while some of them increase your legal obligations, compliance means less legal liability. •

Job applications must be changed. One of the new CORI provisions prohibits you from asking about applicants’ criminal history on the job application. Referred to as “banning the box,” the provision applies only to written job applications; you are still allowed to ask the question later in the hiring process. Unlike most of the changes contained in the bill, this change takes effect November 4, 2010.

Criminal background checks will provide less information. CORI reports provided by the Massachusetts Criminal History Systems Board will have a shorter reporting window. The reporting window for felonies will be shortened from 15 years to 10 years, and for misdemeanors, the reporting window is shortened from 10 years to five years. The 10-year reporting limit does not apply to convictions for murder, manslaughter, sex offenses, and certain violent crimes.

More paperwork. Employers requesting more than four criminal background checks per year must (1) have a CORI policy, (2) notify applicants of any adverse action based on the CORI report, (3) provide a copy of CORI and company policy to affected applicants, and (4) provide information to affected applicants about how to correct their CORI report if they believe it is incorrect. In addition, all employers must give a copy of the CORI report to any applicant they decline to hire based on criminal history.

More record keeping. You are forbidden from disseminating CORI records without permission. There are two exceptions: You may share information (1) within the company on a need-to-know basis or (2) with the government. If you share CORI information, you must maintain a CORI dissemination log that includes the applicant’s name, date of birth, date of dissemination, the name of the person to whom the information was given, and the purpose of the dissemination.

W-2 reporting. Starting in the 2011 tax year, you will have to report the value of employer-provided health benefits on employees’ W-2s. Long-term care program. A voluntary insurance program in which individuals can purchase long-term care insurance will be established in January 2011. You may allow employees to make contributions to the program through payroll deductions.

Employer action required Since the provisions discussed in this article are ones that become effective soon, these are some of the issues you need to concentrate on and tackle first. You should review your current health and benefits plans to get an idea of what changes you may have to make to be in compliance with the new health care reform provisions that go into effect this year and in 2011. Learn how to modify your organization’s benefits plans to comply with the new health care reforms by the January deadline when you participate in the all-new audio conference “Employers’ Health Care Reform Update: 2010 Deadlines, Demands, and Duties.” Visit for more information. You can also download the all-new HR Hero White Paper “A Guide to Obama’s Health Care Reform” at ✤ 4

October 2010

Massachusetts Employment Law Letter •

More delay. You must give a copy of the CORI report to the job applicant before you can question him about it.

Less legal liability. Employers cannot be held liable for negligent hiring decisions based on a recent or inaccurate CORI report.

Greater penalties. The fines for “knowing violations” of the law have increased.

What won’t change. CORI reform doesn’t require you to hire applicants with a criminal history. As before, you are free to determine job qualifications and select the most qualified person for the job on a nondiscriminatory basis.

Bottom line We will continue to report on the effect of CORI reform in the coming year. For now, all you need to do is revise your application to eliminate any inquiry about criminal background — unless you have a statutory obligation to ask the question in your application. If you have additional questions about CORI reform, contact your labor and employment counsel. Michael B. Leahy is an associate at the firm of Skoler, Abbott & Presser, P.C. He can be reached at (413) 737-4753 or ✤

wage and hour law

status whl, el, wages, wpd, flsa, dolwhd, mw

Docking dilemma by Michael B. Leahy Employers are increasing workforce productivity by equipping employees with expensive laptops and “smartphones.” The most obvious wage and hour trap occurs when nonexempt employees use these devices around the clock, possibly creating overtime liability. However, many employers aren’t aware of a more subtle danger that occurs when they dock employees’ pay for losing or damaging company equipment. Under Massachusetts law, you may not dock employees’ wages for lost or stolen equipment. In addition, under the federal Fair Labor Standards Act (FLSA), you may not dock an exempt employee’s wages without risking the exempt status of that employee. Further, you may not dock an amount from a nonexempt employee’s pay that would cause his compensation to fall below minimum wage. Let’s review the rights and obligations of Massachusetts employers on this topic.

Massachusetts Wage Act Mass. Gen. Laws ch. 149, §§ 148, 150, also known as the Massachusetts Wage Act, requires you to make timely payments of wages earned by employees. Additionally, it prohibits you from entering into any special contract with an employee to avoid the requirements of the Act and disallows all defenses against a charge of failure to pay wages earned except for the defenses listed. Not only is reimbursement for lost or stolen equipment not among the defenses listed, it is specifically prohibited by Section 150, which precludes any assignment of wages from the employee to the employer. Employers October 2010

WORKPLACE Trends Survey touts importance of reference checks. A survey from staffing firm OfficeTeam finds that reference checks remove one in five job candidates from consideration. What did managers report asking when checking references? Thirty-six percent said they are most interested in getting input on an applicant’s past job duties and experience. Learning about the individual’s strengths and weaknesses came in second, with 31 percent of the response. Eleven percent of responders said they’re looking for confirmation of job title and dates of employment. Eight percent said they wanted a description of workplace accomplishments, seven percent said they wanted a sense of the applicant’s preferred work culture, and seven percent didn’t know. Study warns of exodus of talent. Corporate rising stars are increasingly disengaged and actively seeking new employment opportunities, according to a study by research and advisory serv­ices company Corporate Executive Board. The findings are a result of an employee engagement study revealing that 25 percent of employer-­identified, high-potential employees plan to leave their current companies within the year, as compared to 10 percent in 2006. The study also revealed that 21 percent of employees today identify themselves as “highly disengaged.” This group has increased nearly threefold since 2007. Unplanned absence found to be major drain on employers. The combined total costs for unplanned incidental and extended disability absences add up to 8.7 percent of payroll, according to a survey conducted for workforce management firm Kronos Incorporated. That’s more than half the cost of health care, which was measured at 13.6 percent of payroll in consulting firm Mercer’s 2009 national Survey of Employer-Sponsored Health Plans. Incidental unplanned absences also result in the highest net loss of productivity per day: 19 percent versus 13 percent for planned absences and 16 percent for extended absences. The number of incidental unplanned absence days per employee per year averaged 5.4 days across all employee classes and ranged from 3.9 for exempt workers to 4.9 for nonexempt salaried workers to 5.8 for nonunion hourly workers and 7.3 for union hourly workers. Too sexy for her job? A 33-year-old single mom who used to work for Citibank in New York City has blamed her good looks for the loss of her job. Debrahlee Lorenzana said her work attire was considered “too distracting” by male managers at the bank, according to an account on NBCNew When she complained to HR about comments, she said her managers retaliated. She said in a lawsuit that her employer gave her unrealistic targets to meet without training her for the job. Citibank, however, claimed her work per­formance was to blame for the loss of her job. ✤


Massachusetts Employment Law Letter


that violate the Act by docking an employee’s pay for lost or stolen equipment face possible civil and criminal penalties, injunctive relief, triple damages, and attorneys’ fees and costs.

OSHA unveils whistleblower website. The Occupational Safety and Health Administration (OSHA) unveiled a new website in July dedicated to its whistleblower protection program. The site   is designed to provide employers, workers, and the public with information about the 18 federal whistleblower protection statutes that OSHA administers. The website provides information about worker rights and provisions as well as fact sheets discussing how to file a retaliation complaint. “This web page is part of OSHA’s promise to stand by those workers who have the courage to come forward when they know their employer is cutting corners on safety and health,” said Assistant Secretary of Labor for OSHA David Michaels. The page will continue to be accessible through OSHA’s website (www. by clicking on the “Whistleblower Protection” link.

DOL weighs in

Solis announces initiatives against wage discrimination. Secretary of Labor Hilda L. Solis has announced several U.S. Department of Labor (DOL) initiatives designed to end wage discrimination while improving pay equity and work-life balance. The initiatives include a collaborative effort among the DOL’s Office of Federal Contract Compliance Programs (OFCCP), the Department of Justice, and the Equal Employment Opportunity Commission. Through that collaboration, the administration will ensure strategic enforcement of pay discrimination cases, according to a DOL statement. Along with hiring nearly 200 additional enforcement staff, the OFCCP will publish an advanced notice of proposed rulemaking early next year that will seek input from stakeholders on how to improve the Equal Opportunity Survey.

With respect to nonexempt employees, the WHD has stated that an employer may not lawfully require an employee to reimburse the expense of negligently lost, stolen, or damaged equipment if doing so reduces his pay below any statutorily required minimum wage or overtime premium that is due. That’s because employers must pay all statutorily required minimum wage and overtime premiums finally and unconditionally — in other words, “free and clear.”

Rule issued on retirement plan disclosure. In July, the DOL announced an interim final rule aimed at enhancing disclosure to fiduciaries of 401(k) and other retirement plans. The rule will assist fiduciaries in determining both the reasonableness of compensation paid to plan service providers and any conflicts of interest that may affect a service provider’s performance under a service contract or arrangement. The interim final rule will require the disclosure of the direct and indirect compensation certain service providers receive in connection with the services they provide. The rule applies to plan service providers that expect to receive $1,000 or more in compensation and that provide certain fiduciary or registered investment advisory services, make available plan investment options in connection with brokerage or record-keeping services, or otherwise receive indirect compensation for providing certain services to the plan. ✤


The U.S. Department of Labor’s Wage and Hour Division (WHD), which is charged with interpreting and enforcing the FLSA, delivered an advisory opinion on the issue a few years ago. In doing so, it considered whether an employer may impose a fine on its exempt employees who damage companyissued equipment (e.g., cell phones and laptop computers) without jeopardizing the employees’ exempt status under the FLSA. It is the WHD’s position that an exempt employee must receive his full predetermined salary for any week in which he performs any work unless one of the specific regulatory exceptions is met. Thus, the WHD concluded that an employer that makes a deduction from an exempt employee’s salary to pay for the cost of lost or damaged tools or equipment issued to him violates the salary-basis requirement and jeopardizes the employee’s exempt status.

Creative solutions Employers aren’t totally without recourse. You may reduce the amount of any discretionary bonus by the cost of the lost or stolen equipment without running afoul of either the Massachusetts Wage Act or the FLSA. The term “wages” isn’t precisely defined by the Wage Act, and while courts have extended the term to cover commissions, it doesn’t seem to extend to discretionary bonuses. The WHD has also opined that deductions for cash shortages made from a salaried exempt employee’s commissions will not affect the employee’s exempt status. It is the WHD’s position that the prohibition against improper deductions from the guaranteed salary doesn’t extend to any additional compensation provided to exempt employees. However, you should consult with labor and employment counsel before implementing this or any other creative solution. The impulse to require your employees take responsibility for their negligence is understandable. However, docking their salary can cost you more than the price of replacing the equipment. Wise employers will partner with labor and employment counsel to develop an appropriate strategy for dealing with lost, stolen, or damaged company property. Michael B. Leahy is an associate at the firm of Skoler, Abbott & Presser, P.C. He can be reached at (413) 737-4753 or ✤ October 2010

Massachusetts Employment Law Letter

employer retaliation status dage, ds, reld, fmla, retal, cd, evid

Return to sender by Timothy F. Murphy Although our courts tell us that not every unpleasant workplace occurrence equates to an unlawful discriminatory or retaliatory act, some rulings disregard that principle. But this one doesn’t. Read on for a court ruling that proves employee perception isn’t always reality.

There’s a new postmaster in town Carmen Roman worked for the U.S. Postal Service (USPS) in Puerto Rico. Although she was permanently assigned as the customer relations coordinator reporting to the San Juan postmaster, she was appointed acting manager of marketing in 2002. In that position, she worked out of the USPS Caribbean district office. During her assignment there, Grace Rodriguez was appointed as the new San Juan postmaster.

‘You can’t make me’ On December 1, 2004, Roman’s manager, Candido Lopez, told her that Rodriguez wished to meet with her to discuss the elimination of the customer relations coordinator position and talk about other positions that were available to her. Roman, who had never actually met Rodriguez, refused to meet with her or even apply for another position. Instead, she filed an age, sex, and religious discrimination complaint through USPS grievance procedures on December 17. Roman continued working as acting marketing manager until the assignment expired on October 4, 2005. She then sought and was granted Family and Medical Leave Act (FMLA) leave for stress. After exhausting all available leave on November 30, 2006, she retired.

The lawsuit Roman filed a lawsuit in federal district court alleging discrimination, constructive discharge, and interference with her FMLA rights. She added a retaliation claim because she contended that the USPS retaliated against her five times after she filed her internal discrimination complaint. The federal district court judge dismissed all of her claims before trial, finding them legally insufficient. Roman appealed to the First U.S. Circuit Court of Appeals, which covers appeals in Puerto Rico as well as Massachusetts.

Retaliation? I don’t think so The appeals court focused on the individual retaliatory acts alleged by Roman, which included: (1) disciplining her for traffic violations; (2) changing her job responsibilities; (3) bumping into her once as she passed through a doorway; October 2010

Union Activity Union wins ruling against city’s tobacco ban. A police union representing police officers in Ellwood City, Pennsylvania, has won a court fight against the borough’s ban on tobacco use. The Pennsylvania Supreme Court ruled in July that borough officials can’t unilaterally ban use of smokeless tobacco by police officers in nonpublic workspaces or smoking in some official vehicles, according to an Associated Press report. The decision says that the city’s prohibition will have limited application to members of the police union unless the union agrees to it during contract negotiations. Ellwood City Mayor Anthony Court said the borough would try to continue the ban through the union contract. UAW voices support for China’s autoworkers. The United Auto Workers (UAW) announced in June that they “stand in solidarity” with Chinese autoworkers who have been pushing for higher wages, safer working conditions, and the establishment of independent trade unions. A wave of labor unrest in China began over the summer, starting with a strike at a Honda component manufacturing plant in Guangdong province that spread to Toyota parts plants in Tianjin and elsewhere throughout China’s industrial belt. A statement from the UAW says it supports China’s autoworkers “and their reasonable demands for higher wages, shorter working hours, and unions that truly represent their economic interests. We call on Honda, Toyota, and other auto manufacturers to improve the living standards of their employees by implementing a genuine system of collective bargaining.” UAW, Rainbow Push Coalition announce joint campaign. The UAW and the Rainbow Push Coalition, led by the Reverend Jesse Jackson Sr., have announced a joint campaign aimed at focusing national priorities on “jobs, justice, and peace.” According to the UAW, the campaign will urge national leaders to enact industrial and trade policies that will create jobs and encourage manufacturing in America. The union also said the campaign will urge enforcement of “the law regarding workers’ rights, civil rights, industrial regulation, and creation of fair and just educational, economic, and health policies.” The campaign also will urge an end to the wars in the Middle East and a redirection of the war budget to “rebuilding America.” Educator union announces milestone. The American Federation of Teachers (AFT) announced in July that its total membership had officially surpassed 1.5 million, including almost 70,000 new members in the past two years. The new number represents growth in all of the AFT’s divisions. In the past two years, the union has chartered 53 locals, won 85 organizing victories, and organized staff in 150 charter schools. ✤


Massachusetts employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 10-21 “Unionized Employers Virtual Summit: Negotiating CBAs and Mastering Other Labor Challenges,” presented by attorneys James F. Kilcur, Christoper J. Murphy, and Robert C. Nagle. 12-15 “Conducting Effective Workplace Investigations Virtual Summit,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero. com. AUDIO SEMINARS — events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-5 “Independent Contractor or Employee? Avoid the Misclassification Crackdown,” presented by attorney Kara E. Shea. 10-7 “Conducting Firings and Managing Termination Pay: Legal Guidance for Employers,” presented by attorney Brian R. Garrison. 10-12 “High-Performance Performance Reviews: How to Take Employees to the Next Level,” presented by Jay Forte, Humanetrics. 10-13 60-MINUTE SKILL BUILDER: “Help! They Made Me the HR Manager: How to Survive and Thrive on the Job,” presented by Teri Morning, MBA, MS, SPHR, Teri Morning Enterprises. 10-14 “Silent Raids and Other New ICE Tactics: Immigration Compliance Best Practices,” presented by attorney Christopher L. Thomas.

(4) ending her acting marketing manager assignment; and (5) temporarily withholding her pay after she went on FMLA leave. To overturn the lower court’s dismissal, Roman had the burden of demonstrating by objective evidence that (1) the USPS was motivated by retaliatory bias to take the alleged actions or (2) the reasons the USPS gave for taking the actions were untrue. The First Circuit found that the traffic citations were legitimate and nonretaliatory because Roman’s traffic infractions were observed on camera and by several others. In addition, other USPS employees, including Rodriguez, had been cited for traffic violations. Further, the court determined that the decisions to change Roman’s job responsibilities and end her temporary assignment were motivated by legitimate operational interests and not retaliatory bias. And although there was a “bumping” incident, it was caused by a malfunctioning security door rather than any desire to punish her. Finally, the appellate concluded that the initial failure to pay Roman when she went on FMLA leave was a mistake rather than an intentional act of reprisal. The court cited the confusion over the newly implemented electronic submission system, the fact that others also weren’t paid, and the fact that the USPS promptly compensated her after it recognized the mistake. The court found it significant that during the period of claimed retaliation, Roman received a bonus, favorable perform­ ance reviews, and suffered no loss of pay or benefits. Ultimately, the First Circuit ruled that her subjective belief that she had been retaliated against for her internal discrimination complaint was inadequate in the face of the legitimate nonretaliatory reasons the USPS provided for its actions. Thus, the dismissal of her case was upheld. Roman v. Potter, U.S. Postmaster General (First Circuit Court of Appeals, 2010).

Bottom line

10-18 “Monitoring Employee E-Mail, Texting, and Facebook: What’s Off Limits?” presented by attorney Margaret (Molly) DiBianca.

You don’t need to treat employees who file discrimination complaints with kid gloves. You can hold them accountable — as you would any other worker — so long as you have legitimate nondiscriminatory reasons for doing so. As always, you should uniformly enforce only one set of workplace rules to avoid the legal and employee morale problems that result from workplace double standards.

10-19 “Doing Business in China: What HR Needs to Know,” presented by attorney Robert L. Brown. D

Tim Murphy is a partner at the firm of Skoler, Abbott & Presser, P.C. He can be reached at (413) 737-4753 or tmurphy@skoler-abbott. com. ✤

Massachusetts EMPLOYMENT LAW LETTER (ISSN 1049-2062) is published monthly for $447 per year by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Copyright 2010 M. Lee Smith Publishers LLC. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent.

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Employee Benefits Discrimination Ralph F. Abbott, Jr., Editor, and Susan G. Fentin, Marylou V. Fabbo, Associate Editors Hiring Retaliation P...