In an effort to keep our newsletter readers abreast of recent developments and legal trends, we are continuing our “top five to ten” list of cases of importance to executives and professionals.  This time we are addressing cases in the following fields: privacy rights in the workplace; discrimination; and wage and hour law. Included in our list is also a “heads up” regarding important topics and cases likely to be decided soon – including how to measure breach of contract damages when a person’s career is at stake.

PRIVACY RIGHTS IN THE WORKPLACE

1. Employees Don’t Leave the Right to Privacy at the Office Door

Treviso v. Curtis Liquor Stores, Inc., No. 17-0767 (Mass. Super. Dec. 14, 2018)

Under Massachusetts law, G.L. c. 214, § 1B, individuals may sue for “unreasonable, substantial or serious” invasion of their privacy.  A recent Superior Court decision, Treviso v. Curtis Liquor Stores, Inc., affirmed not only that this right extends into the workplace, but that an employer may be held liable for privacy violations of a supervisor.

After a female employee at a liquor store learned that her managers had been secretly filming her in the women’s bathroom and sharing those images around the workplace, she brought suit against her managers and her employer for, among other things, invasion of privacy and wrongful termination in violation of public policy.

The Court rejected the employer’s argument that it should not be held responsible for conduct that was not job-related. Instead, the Court held that the employer could be liable for managerial conduct that was made possible by their authority as managers, i.e., having keys to the women’s bathroom and access to the facility after-hours.  In conclusion, the Court denied the employer’s efforts to derail the case before it was heard by a jury.

DISCRIMINATION

2. When it Comes to Disability Accommodations – Keep Talking

Alves v. Trustees of Boston Univ., No. 178-cv-02163 (Mass. Super. Dec. 3, 2018)

Most anti-discrimination statutes set out prohibitions – for example, do not consider someone’s race in making employment decisions. The laws against disability discrimination set out such prohibitions but also establish obligations.  For example, an employer is required to provide reasonable accommodations to qualified handicapped individuals, unless doing so would constitute an undue hardship. Employers are also required to engage in a dialogue with employees – called the “interactive process” – to determine what, if any, reasonable accommodations are possible. When employers dismiss accommodation requests out-of-hand, they may run afoul of the law.

In a recent case, Alves v. Trustees of Boston University, an employee requested a medical leave but did not provide a specific date for her return. Instead of engaging in the interactive process, Boston University (“BU”) sent her a letter denying her request, and terminating her employment.

The court rejected BU’s efforts to keep the case away from a jury, and highlighted BU’s failure to engage in the interactive process:

BU did not provide the Accommodation Request Form to Alves, did not ask whether she had a return timeframe, and did not await medical information before making a decision. BU rejected the requested accommodation within hours of receipt, apparently because it believed it was required to provide only one accommodation.

But beware, employees and employers are both obligated to participate – in good faith – in the interactive process. The Alves decision is a reminder that when it comes to disability accommodations, it is often best to keep talking.

MASSACHUSETTS WAGE AND HOUR LAW

3. Not Even a Union Contract Can Waive Some Rights

Parris v. Sheriff of Suffolk Co., 93 Mass. App. Ct. 864 (2018)

In Parris v. Sheriff of Suffolk County, a group of union employees filed suit in court under the Massachusetts Wage Act, G.L. c. 149 § 148, seeking unpaid wages. The employer argued that the lawsuit must be dismissed because, among other things, the claims had to be brought as a grievance under the collective bargaining agreement, which – conveniently for the employer – did not provide employees with Wage Act remedies like treble damages. The Appeals Court disagreed, ruling that it is “beyond the union’s ability to bargain away” an individual’s right under the Wage Act to be “paid promptly the wages due to him or her.”

As the Parris decision makes clear, courts do not hesitate to strike down efforts – however creative – to avoid the Wage Act’s strict requirements and penalties.

4. Recovering Money Owed – What is an Earned Wage?

Calixto v. Coughlin, 481 Mass. 157 (2018)

In Calixto v. Coughlin, the Massachusetts Supreme Judicial Court determined that an employer’s failure to provide “notice pay” (compensation paid in lieu of notice) did not violate the Wage Act.  The Court observed that the employees were not required to – and, most importantly, did not – work for the notice pay, and so the monies at issue were not earned wages to which the Wage Act applied.

However, the Court did not foreclose other avenues to recover the notice pay, and in fact, in Calixto, the plaintiffs recovered damages under the WARN Act, a federal law that regulates large-scale layoffs. The Employment Department at Sherin and Lodgen can help you explore how to pursue your claim for money owed – whether the legal theory is contractual, equitable, or statutory, and help determine whether your claim is subject to the precise requirements and significant enhancements available under the Massachusetts Wage Act.

5. Getting Your Attorney’s Fees Paid

Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488 (2019)

One way in which the Massachusetts Legislature disincentivizes certain unlawful conduct is with fee-shifting provisions. Fee shifting provisions allow a prevailing party to recover their reasonable attorneys’ fees and costs from the opponent in addition to any other damages. Fee shifting provisions can be found in civil rights statutes, such as the laws against discrimination and the Massachusetts Civil Rights Act, G.L. c. 12 § 11I. They can also be found in the Massachusetts Wage Act and other wage and hour laws, G.L. c. 149 and 151.

In the recent case of Ferman v. Sturgis Cleaners, Inc., the Massachusetts Supreme Judicial Court held that a plaintiff is a prevailing party under the Wage Act if the “lawsuit is a necessary and important factor in causing the defendant to grant a material portion of the requested relief,” even if the relief came by way of pre-trial settlement rather than after trial.

The Ferman decision, and fee shifting provisions more broadly, help empower individuals to vindicate their rights, and level the playing field against often larger and better funded employers.

HEADS UP

6. What is the Measure of Damages when a Scientist’s Career is at Stake?

Hlatky v. Steward Health Care Systems, LLC, SJC-12688

Damages for breach of contract are often measured by the “benefit of the bargain” – meaning that the harmed party must be placed in the same position as if the contract had been fully performed. In Hlatky v. Steward Health Care Systems, LLC, the Massachusetts Supreme Judicial Court is expected to consider exactly what that means when an employee’s career is at stake.

In Hlatky, a jury found that the employer breached its employment contract with Dr. Hlatky and violated the covenant of good faith and fair dealing by withdrawing its support for the laboratory at which she conducted her research, and she was ultimately awarded $10.2 million in damages.

On appeal, the Court will address whether the proper measure of damages is the plaintiff’s lost wages and benefits (as the employer contends) or the cost of funding a new laboratory so that Dr. Hlatky could continue her research (as the trial court judge permitted the jury to find).

7. Grooming Policies Getting Clipped

Many employers have dress codes or grooming policies, such as no jeans in the office, or no visible piercings while at work. The New York Yankees famously do not permit certain types of facial hair. However, in certain cases, employees have successfully challenged such policies as being unlawfully discriminatory, whether or not so intended.  According to the New York City Commission on Human Rights (“NYCCHR”), a workplace ban on certain hairstyles, e.g., cornrows, fades, Afros, may have a disparate impact on employees based on race. See New York City Administrative Code, § 8-107. You can find the NYCCHR Guidance here. The MCAD has yet to weigh in on this specific issue.

8. Will Height and Weight Discrimination Become Unlawful in Massachusetts?

Bill H.313

Right now, the Massachusetts anti-discrimination statute, G.L. c. 151B, does not explicitly prohibit weight and height discrimination. But, a bill has been introduced on Beacon Hill to do just that. You can find the text of the bill here. Discrimination based on weight, however, may already be prohibited under Chapter 151B, as discrimination based on disability. Some individuals in Massachusetts have sustained such claims, particularly where the obesity at issue was severe or related to an underlying physical or mental condition.