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Court corrects MCAD

April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?

Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.

After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”

The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.

In a nutshell: This decision delivers a subtle but important victory for employers.

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Peter Vickery, Esq.

New harassment enforcement guidelines

February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.

One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”

The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.

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Peter Vickery, Esq.

 

 

Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

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Peter Vickery, Esq.
Featured

Election 2016: one call to make the day after

October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

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Tips & Taxis

Tips and taxis (or taxi drivers, to be precise) provide the subject matter for my latest employment-law article in Business West magazine.

Does the law allow a restaurateur to establish a no-tipping policy? And are Boston taxi drivers really employees even if their lease agreements describe them as independent contractors?

To find out, just click here.

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Attorney Peter Vickery

Who’s the boss?

The headline refers not to the popular sitcom of the 1980s, but to a question that seems not to have occurred to the National Labor Relations Board (NLRB).

Who should be liable for an employer’s labor practices: the employer or somebody else? Both, says the NLRB.

You can read about this unfortunate decision in my latest column in BusinessWest magazine. Just click here.

Peter Vickery, Esq.
Peter Vickery, Esq.

The meaning of “the”

Does “the” mean “the,” or does “the” mean “a”? theThat is the essence of the key question before the Supreme Court of the United States, which will hear oral arguments today in National Labor Relations Board v. Noel Canning. Ten years ago, when President George W. Bush was in office, the late Senator Ted Kennedy argued that “the” means the definite article. Today counsel for President Obama’s NLRB will say that it does not.  As Senator Kennedy’s brief makes clear, this is not an inherently partisan question, and the meaning of “the” should not depend on which party controls the White House.

At issue is the President’s authority to appoint government officials without the advice and consent of the Senate. As a default rule, the Constitution requires Senate approval for these appointments, but provides an exception:  “The President shall have power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” U.S. Const. art. II, S.2., cl. 3.

When can the President exercise this power?  In other words, what is “the recess”? Can any break within a Senate session qualify, or does the phrase only apply to the recess that occurs between sessions?

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Senator Ted Kennedy

In 2004, Senator Kennedy argued that President Bush’s appointment of a judge was invalid because it happened during a 10-day break after the Senate had reconvened in January 2004 for its second session.  A break within a session does not create an opportunity to exploit the Recess Clause, Kennedy argued. “An intrasession adjournment is not ‘the Recess’ to which the Recess Clause refers.” (Kennedy Amicus Brief, p. 4).

The issue arose again after President Obama made appointments to the NLRB without the Senate’s consent.  The Senate was not between sessions at the time, and was holding pro forma sessions of the sort that it used in 2007 for the express purpose of preventing President Bush from making any more recess appointments.  President Bush appears to have agreed that these pro forma sessions had the effect of keeping the Senate in session and not in recess.  At any rate, he made no further purported “recess” appointments.

The alleged “recess” that President Obama used in January 2012 – like President Bush in 2004 – was within a session of the Senate (an intrasession recess as opposed to an intersession recess). This was precisely the kind of appointment that Senator Kennedy’s brief denounced as unconstitutional.

Back in 2004 the Court of Appeals for the Eleventh Circuit rejected Senator Kennedy’s argument and ruled in favor of President Bush. It held that the “Senate’s break fits the definition of ‘recess’ in use when the Constitution was ratified.” Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).  In contrast, the Court of Appeals for the D.C. Circuit held that “the recess” does not mean just any break in proceedings, but rather is confined to the gap between sessions.

The lower courts are divided.  Now it is up to the Supreme Court to decide which argument is correct: Senator Kennedy’s or President Obama’s.

Update: June 26, 2014: The Supreme Court of the United States held that the Senate is in session whenever it says that it is, so long as it has the capacity to transact Senate business.