EEOC Sues Massachusetts Medical Center Over Its Mandatory Flu Vaccination Policy

June 6th, 2016

Did a Massachusetts hospital discriminate against a worker who refused to get a flu shot? See what Joel said in this story from the Bloomberg Bureau of National Affairs.

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Religious Discrimination

EEOC Sues Massachusetts Medical Center Over Its Mandatory Flu Vaccination Policy

A Massachusetts hospital discriminated against a Christian human resources employee who de- clined a flu shot for religious reasons and who raised concerns about the alternative of wearing a face mask at work, the EEOC alleges in a novel lawsuit (EEOC v. Baystate Med. Ctr., Inc., D. Mass., No. 3:16- cv-30086, complaint filed 6/2/16).

According to the Equal Employment Opportunity Commission, Baystate Medical Center Inc. placed Stephanie Clarke on unpaid leave and then fired her because she sought a religious accommodation from its mandatory influenza immunization policy for employees. That violated federal anti-bias law, the agency alleges in a complaint filed June 2 in the U.S. District Court for the District of Massachusetts.

The hospital also fired Clarke because she failed to wear a face mask—which hospital policy required of all employees who refused immunization—at all times while working and complained that the hospital was discriminating against her, the EEOC asserts. Clarke never worked around patients and she occasionally pulled down the mask when people said they couldn’t understand her, according to the commission.

The lawsuit, filed under Title VII of the 1964 Civil Rights Act, involves a “unique issue” on which there re- ally is no binding case law, attorney Alan Phillips of Asheville, N.C., told Bloomberg BNA June 3. Although a Canadian arbitrator decided the issue in 2015, Phillips said “there’s no real court precedent” in the U.S. of which he’s aware.

Joel Rosen of Rosen Law Office in Andover, Mass., agreed that the case presents a somewhat novel issue. “There are a lot of cases” involving employee vaccination policies, “but they mostly involve whether it’s a bargained-for term in a union contract,” he told Bloomberg BNA June 3. He represents doctors and dentists in medical practices.

Policy Requires Vaccination or Mask. According to the complaint, Baystate’s immunization policy applies to all employees, even those like Clarke whose office was located in the hospital’s administrative services building and who weren’t required to have patient contact. Employees who failed to comply with the policy for religious or other reasons were required to wear a face mask or they were placed on unpaid leave, without job protection, until they complied with the policy or the flu season ended, the EEOC asserts.

Clarke was hired in December 2014 as a talent acqui- sition consultant and raised a religious objection to the policy in October 2015 when her supervisor told her and her fellow employees they needed to be vaccinated by the following month.

Clarke brought her concern about being unable to effectively communicate because of the mask to hospital management, but she was nevertheless suspended without pay after her supervisor noticed she wasn’t always wearing her mask over her nose and mouth. She complained of religious discrimination and a few weeks later was told she couldn’t return to work until she either received the flu vaccine or promised to wear the face mask at all times.

When she maintained her objection, the hospital told her it viewed her as having resigned.

“Federal law requires employers to fairly balance an employee’s right to practice his or her religion and the operation of the business,” Jeffrey Burstein, regional attorney for the EEOC’s New York district office, said in a June 2 statement announcing the lawsuit. “For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively,” he said.

Baystate Health’s director of public affairs, Benjamin Craft, told Bloomberg BNA in a June 3 e-mail that the Springfield, Mass.-based hospital doesn’t “comment specifically on pending litigation.” He added, however, that the safety of the patients “is our highest priority, so we take all reasonable steps to minimize any risk of transmission of infectious illness such as flu. That includes a requirement to be vaccinated against flu or wear a mask at all our facilities during flu season.”

“Cautiously Delighted.” Phillips noted that employee objections to wearing a face mask is a frequently recurring issue in the area of mandatory employer vaccination policies but ‘‘one the EEOC has struggled with.” He said he’s “cautiously delighted” that the agency has decided to pursue the case and hopes it results in some useful guidance from the court on the subject.

The case really boils down to whether the hospital reasonably accommodated Clarke under Title VII, he said. That standard is based on “mainstream medical science,” which favors the EEOC’s claims, Phillips said.

Face masks don’t actually work for the intended purpose because “they don’t block or filter viruses out of the air,” which is acknowledged by the federal Centers for Disease Control and Prevention, according to Phillips. Moreover, the flu vaccine itself has a low efficacy rate, he said.

“If the EEOC does a good job” in presenting its claims and looks to the Canadian arbitrator’s ruling, ‘‘the case should be a slam-dunk, no-brainer’’ for the agency, Phillips predicted.

Hospital Has Duty to Patients. But Rosen told Bloomberg BNA that the hospital’s first duty is to pa- tient safety. The court may find in its favor if it thinks Clarke’s request for accommodation may have compro- mised the hospital’s ability to protect patients from exposure to the flu virus, he said.

The hospital also may question the sincerity of Clarke’s alleged religious belief, Rosen said. The Bible doesn’t say anything about vaccinations, and the EE- OC’s complaint seems to say Clarke’s objection was based on her interpretation of the Bible, he said.

However, Rosen said he thinks a court would side with the EEOC on that issue.

Instead, the case likely will turn on whether the hospital made a reasonable effort to accommodate Clarke’s religious objection, he said. That will involve questions such as what conversations the hospital had with Clarke, whether it offered to let her work from home and whether it discussed allowing her to remove the mask when she needed to communicate with someone, Rosen said, noting there could have been a few potential accommodations.

If it’s true that Clarke didn’t work around patients, the hospital may have a tougher case to defend, he said.

BY PATRICK DORRIAN

Text of the complaint is available at http://src.bna.com/fzI.

Download a PDF version of this article

posted by: joelrosen in Announcements, EMPLOYMENT & DISCRIMATION, For Medical Professionals, PROTECTIVE GEAR | No Comments

Massachusetts Wage Act Overview

March 3rd, 2016

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Get the Wages You Have Earned

Here are a few ways employees get cheated:

  • They don’t get all their wages at the end of every pay period.
  • They don’t get time and a half when they work over 40 hours.
  • They work on public works projects but don’t get paid the prevailing wage.
  • They don’t get paid commissions when they are due.
  • They don’t get paid in full on the day they terminate, including vacation pay.

If you’re one of those employees, the Massachusetts Wage Act may provide a way for you to get back three times your unpaid wages.  

Massachusetts has some of the strongest employee rights laws in the country.   If your employer has not paid you your full wages, commissions, vacation pay, overtime, or prevailing wages—and paid you on time—you can sue to get back three times your unpaid wages, and also your attorneys’ fees and costs.    

The first step is to file a wage complaint with the Massachusetts Attorney General’s Office.  You need to do this before suing your employer.  It is best to fill out this claim as soon as you learn you are being cheated, and it must be done within three years of the wage violation.  Otherwise, you waive your right to bring a wage claim.  You do not need to submit any documents, just follow the link below to fill out the online form.

https://www.eform.ago.state.ma.us/ago_eforms/forms/npwc_ecomplaint.action

The purpose of completing a wage complaint is to give the Attorney General’s Office the opportunity to investigate your claim and get back your lost wages for you.   If the investigation results in payment, you’ll get your wages, but not treble damages and attorneys’ fees.  And the investigation can take a very long time.  That’s why you may decide to file a lawsuit. 

After you fill out the wage complaint, you can ask the Attorney General’s Office for a “Right to Sue” letter.  When the letter arrives, you can file a lawsuit against your employer in court.  At this point in the process, or earlier, you may want to find an attorney to help you with your case.  

Because the statute is so punitive to employers, our firm often takes on wage claims on a contingency fee basis.  This means that we will bring the lawsuit on your behalf, in exchange for payment from the settlement you receive from your employer if you win. 

The Rosen Law Office has a great deal of experience bringing successful Wage Act lawsuits.  In the last few years, we have helped a number of employees who were being cheated out of their proper overtime wages, prevailing wages, or both, obtain satisfactory settlements with or judgments against their employers.  If you think you’ve been cheated, you should call for a free consultation.    

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Too Sexy for My Job

January 14th, 2013

Can you fire a woman because she’s too attractive? We wouldn’t advise it, but a couple of employers have gotten away with it.

A dentist fired his assistant because he was irresistibly attracted to her. The assistant had worked at his office for ten years, and her work was fine. When she and the doctor began sending texts to each other—which were personal but not romantic—the doctor’s wife got jealous. He fired the assistant to save his marriage, and she sued him for gender discrimination.

The Iowa Supreme Court said it may not have been fair, but it wasn’t discrimination. They held that the decision was based on the dentist’s personal feelings about the assistant, rather than her gender alone. Besides, there weren’t any unwelcome advances, and there was no hostile work environment. As a result, there was no basis for finding that the firing was illegal.

Then there is the famous case of Debrahlee Lorenzana, a 33-year-old banker, who was fired because her figure and style of dress were too distracting to her coworkers. A colleague at Citibank told the Village Voice: “Men are kind of drawn to her. I’ve seen men turn into complete idiots around her. But it’s not her fault that they act this way, and it shouldn’t be her problem.”

Lorenzana pointed out that other coworkers wore heels and fitted business suits, some that were more revealing or “sexy,” but Citibank said their bodies were different. Her figure was just too distracting. Lorenzana’s case went to arbitration, and Citibank has stated that she did not receive any payment.

Now Lauren Elizabeth Odes has filed a gender and religious discrimination suit against her former employer, Native Intimates. After sending her home to change clothes, and directing her to wear a red bathrobe over her outfit, her employer advised her to tape down her breasts to make them appear smaller. She was fired when she went shopping for an outfit that would satisfy her boss.

It’s true that employers can set standards of dress. Allegedly, none of these employees was sexually harassed as the term is generally understood. It is also true that employees-at-will can be fired for any reason or no reason—including a subjective decision on the part of the boss. But it hasn’t escaped us that every one of these stories is about a woman. We have never found a case where a man is told he is too attractive to keep his job.

Women are placed in an impossible position. Can an employer set one dress code for plain women and another for pretty ones? Who decides where the line is between pretty and plain anyway?

These cases caused much debate in our office. Surprisingly, the women felt that the requirement to dress appropriately should not constitute gender discrimination. On the other hand, when one considers the details behind some of these claims, it seems inconceivable that the harassment and termination could be based on anything but gender. In the Lorenzana and particularly the Odes cases, you cannot create a set of facts that would expose a man to the same requirements.

We predict that very soon, one of these cases will end up with a judgment against the boss. The woman isn’t too sexy—the employer is just too biased.

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When are Releases of Wage Act Claims Valid and Enforceable?

January 3rd, 2013

When an employee signs a general release of claims, the hope and expectation is that you will not hear from the employee again. In fact, that is the primary purpose of the release, especially when the employee is compensated in exchange for signing it. However, a recent decision issued by the Massachusetts Supreme Judicial Court offers guidance to employers to ensure when a release of Wage Act claims will be found valid and enforceable in Massachusetts.
In Crocker v. Townsend Oil Company, Inc., Plaintiffs, two former oil delivery truck drivers, claimed that they were owed compensation, including overtime pay, under the Wage Act based on their classification as employees, rather than independent contractors. The employer responded, along with a statute of limitations defense, that a general release contained in a termination agreement signed by plaintiffs barred any Wage Act claims. Though the SJC struggled with its policy to broadly enforce general releases, it disagreed.
The SJC concluded that the general release contained in the contract carrier termination agreement did not explicitly include the release of Wage Act claims. The Court continued that a release of Wage Act claims will be enforceable, only when such an agreement is stated in “clear and unmistakable terms”. Offering further guidance, the SJC stated that the release must be plainly worded and understandable to the average person, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving. Absent express language that Wage Act claims are being released, a general release is ineffective to waive them.
It is important to note that the SJC also stated that this case only dealt with retrospective release of claims – in other words, claims that existed at the time of the Agreement. This means and the Court strongly suggested that waivers of prospective wage act claims would be void under the Wage Act. This likely is an effort by the SJC to give weight to the Wage Act language that expressly states that employers cannot exempt themselves from obligations under the Wage Act by “special contracts with employees.”
As most employers are aware, damages under the Massachusetts Wage Act, including overtime pay, are automatically trebled. Given the potential risk, it is even more important that employers obtain a valid and enforceable release of Wage Act claims. The decision is an important reminder to employers to make sure they expressly state in plain and understandable language the rights and claims that the employee is waiving under the Wage Act. What constitutes “plain and understandable” and “clear and unmistakable terms” will likely be subject to further interpretation by the courts. In the interim, however, employers should proceed carefully and consult employment counsel if they want assurance that their employee’s release of Wage Act claims will be valid and enforceable.

-Kavita Goyal

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Surviving Challenges to your Non-Compete Agreement

December 29th, 2012

In Massachusetts, the validity and enforceability of non-compete agreements is a heavily litigated area of employment law. Non-compete agreements will generally be enforceable when they seek to protect legitimate business interests of the employer such as trade secrets, confidential information, or good will. A non-compete that seeks to prevent ordinary competition is not enforceable. In addition to protecting a legitimate business interest, the agreement generally must also be reasonable as to (a) the amount of time it seeks to be in effect, (b) the scope of what it covers, and (c) the geographic area it encompasses. Courts generally do not like to see that a non-compete agreement is over-reaching in any of these respects. It cannot, in effect, preventing an individual from earning a living.

There are also certain members of industries for whom non-compete agreements are illegal or will be found to be unenforceable. They are the following:
• Doctors
• Lawyers
• Psychiatrists
• Psychologists
• Nurses
• Social Workers
• Radio Broadcast on-air personalities
• Registered Brokers in a publicly traded company
The following are a few basic strategies for employers to help reduce the chances that an employee will challenge the validity of their noncompete agreement after they end their employment and increase the chances it will be upheld if it is challenged:

1. Be Specific

At the beginning of the employment relationship, discuss exactly what the employee’s obligations will be under the non-compete agreement should the relationship end and define any vague or ambiguous terms with the employee and/or his lawyer. When employees fully understand what is expected of them and they are in agreement at the beginning of the employment they are less likely to challenge the agreement’s validity at the end of the relationship. Additionally, should the employee challenge the legality of the non-compete, a specific agreement will more strongly support your position that the interests sought to be protected are legitimate and important as opposed to one that is vague and undefined.

2. Less May be More

Identify which legitimate business interests are truly the most important to your business and narrow the scope of your non-compete agreement to adequately protect just those key interests. Such an agreement will have a much better chance of surviving challenges to its enforceability because a court is less likely to view the agreement as overreaching and thus preventing the former employee from earning a living.

3. One size does not fit all.

Rather than having standard non-compete agreement for all employees, tailor your non-compete to the individual employee or to a class of employees. Execute them on a sliding scale with stricter and broader enforcement for high level executives with significant access to protectable company information to a very narrow, or even no, non-compete agreement for low-level employees with little or no access to confidential information.

-Peter Fisher

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Wages During a Disaster

November 8th, 2012

People have been asking us whether they are entitled to be paid after a hurricane or other disaster closes their workplace.

Hourly, or nonexempt, employees are paid only for the hours they actually work. If the business is closed during a natural disaster, they do not receive any payment. There are a couple of exceptions. An employee who is on the premises waiting to work—if the power fails, for instance—should be paid. Employees who are on call at or near the business premises may be entitled to payment.

Salaried employees get the same pay no matter how many hours they work in a given week. They are entitled to their full salary for any week in which they perform any work—even if the office is closed for part of the time. However, the employer may require them to use allowed leave—such as vacation or personal days—for this time. If the office is open, but the employee decides not to come to work, this may be considered unpaid leave, or the employee may have to use vacation time. If the exempt employee is only out for part of a day, there should not be any deduction in pay.

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When is your construction employee entitled to the Prevailing Wage?

March 15th, 2012

Not everyone who works on a public construction project in Massachusetts has to be in a union.  However, to prevent ordinary workers from undercutting the unions, non-union shops have to pay their employees approximately what union workers make.   Prior to the start of any public works project, a list of the jobs which are to be employed on the project is submitted to the Director of the Department of Labor Standards.  The Director then determines a rate of wages for certain classifications of jobs.  The awarding authority is then furnished with a schedule of such wages and updates these wages on a yearly basis until the project is complete.  This higher hourly rate is called the prevailing wage and is mandated by the Massachusetts Prevailing Wage Laws, G.L. c. 149 §27.   

If you are in the construction business, you want to pay your workers what the law requires.  A basic understanding how workers should be classified under a Director’s schedule of wages is therefore extremely important.   Failure to correctly classify workers can expose employers to significant fines and expensive lawsuits.  A worker who is not paid the appropriate prevailing wage has the statutory right to bring a lawsuit in his or her own name after initially filing a complaint with the Attorney General.  If successful, the employee is entitled to mandatory treble damages for any lost wages, even if it is the employer’s first offense and/or even if the employer’s violation was unintentional. 

For the most part workers will fall neatly under one of the enumerated categories of jobs on the director’s schedule of wages; however, some workers, despite their job title, perform duties which make it difficult to determine whether or not they should be paid the higher prevailing wage.  For example, workers who deliver materials which are not used in road construction do not generally fall under one of the Director’s classifications.  However, when those same workers are in some way “engaged in construction activity” in connection with a public works project, then regardless of their job title, they may be entitled to the prevailing wage.

While there is no bright line rule for an employer to know whether an employee is “engaged in construction activity,” courts have interpreted this phrase as requiring that there be a “significant nexus between the employee’s work and the site of the construction project.”   In other words, regardless of what your employee’s job title may be, an employer should always ask: What exactly is my worker required do at the public works site?   If your employee is required to perform any type of labor on site or in connection with the construction project, that employee should most likely be paid the prevailing wage.   The Department of Labor Standards publishes annual topical outlines which are useful to employers seeking guidance on specific worker classifications. The most recent can be found at http://www.mass.gov/lwd/docs/dos/prevaling-wage/interim-topical-outline.pdf 

Peter Fisher

posted by: joelrosen in BUSINESS, BUSINESS ADVICE & LITIGATION, CONSTRUCTION CONTRACTS & DISPUTES, EMPLOYMENT & DISCRIMATION | 17 Comments

Masssachusetts Data Privacy Update

February 29th, 2012

Most businesses that handle “personal information” of Massachusetts’ residents (i.e., a resident’s name and financial information, such as driver’s license, credit card number or social security number) must satisfy additional requirements of the Massachusetts data security regulations (201 CMR 17:00, et seq.) by March 1, 2012.  The regulations, which took effect March 1, 2010, require businesses to have adequate protections in place to ensure that such personal information is not disclosed or used in an unauthorized manner.

Businesses must take further steps to comply with the regulations by ensuring that their service providers are also in compliance by March 1, 2012.  Specifically, such businesses must have investigated the adequacy and appropriateness of service providers’ data security policies and practices.  In addition, they must have contracts in place which demonstrate that they are in compliance with the regulations. Service providers may include office cleaning services, payroll companies, internet servers or host providers, or billing companies, as well as others.

Companies affected by this law should check their contracts with their service providers to determine whether the contracts comply with the regulations.  If not, such contracts should be amended as soon as possible.  Simply receiving a letter from your services providers stating that they are in compliance is not sufficient.  It is advisable that the contracts with service providers include additional language to protect your business, such as the following:

  • Include language allowing you the right to audit the service provider’s compliance with the regulations.
  • Require the service provider to inform you of any breach of the regulations
  • Include a clause that requires your provider to indemnify (pay you back) if a claim is made against you as a result of their actions.
  • State that they must return or destroy personal information upon contract termination.
             -by Coale Parker
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How to Avoid Being Sued After You Fire an Employee

February 24th, 2012

Employers must be sensitive to the emotional reactions of employees when they have been fired.  An employee who realizes he may have played a part in his separation will respond differently from an employee who comes to the conclusion that he was discriminated against or fired illegally. There are steps an employer can take to prevent claims for unlawful termination.

When an employee is terminated for unsatisfactory performance, it should come as no surprise.  Unless the performance is egregious, the employee should be notified that his performance must be improved, with guidance as to how to reach specific goals.  This is not a legal requirement, but in most cases, it is more efficient to help an employee correct mistakes rather than replace him.  A better atmosphere in the workplace is created generally, and the employee has been warned if there needs to be a termination later on.

One rule is to always document discussions regarding opportunities for improvement. These interactions should be noted in the personnel file shortly thereafter to have a record of what was said.  It’s a good idea to have the employee sign the written document to show he has received it, and he should definitely receive a copy.

Be consistent. Think about chances you have given other employees to improve and why.  Make sure you provide those same opportunities to employees in similar situations and carry through.  Do not tell an employee that he has ninety days to improve, and then terminate him less than one month later.  Be careful not to create the impression that the employee cannot be fired during the probationary period.  Nothing in these conversations should be construed to change the at-will relationship.  Train your managers so that they are aware of how to deal with performance issues with their staff. Your managers represent the company and are the direct communicators with the employee.   For that reason, they should be given guidelines as to how to deal with problematic employees.

If it feels wrong, it probably is.  Place yourself in the employee’s shoes.  How would you react if you were told you were being terminated?  If you would be surprised, then more steps should be taken before you fire the employee.  Finally, seek legal advice before taking action.  If you are uncertain about the legality of the termination, it makes sense to talk to someone who deals with these situations every day.

–Kavita Goyal

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Why You Need a Social Media Policy

February 8th, 2012

Internet use by employees is a hot topic for most employers.  In addition to the issue of access during work hours, companies face the use of their name in employee blog posts, tweets, Facebook and LinkedIn.  They need to be able to control the content and timing of messages so that proprietary information is not revealed and their image is not damaged.  At the same time, they do not want to interfere with an employee’s first amendment rights.  Even well-meant postings can be damaging.

The purpose of a social media policy is to put the employee on notice as to the employer’s expectations with regard to Internet use.  The employee should know that the policy will be modified as technology develops and changes.  Clear cut guidelines help to prevent misunderstandings and serve to protect the employer. They provide a basis for termination if it is ultimately necessary.

Companies vary widely in their policies regarding employee involvement in the Internet, but one thing is certain:  it is better to put your employees on notice regarding your social media policy rather than facing an unforeseen problem and dealing with it after it occurs.

Employees must first understand that they do not have any right to privacy on their computers at work.  Whatever they write can and may be reviewed by the company.  They are never allowed to reveal confidential or proprietary information.  In addition, they should know the company standards with regard to use of its name.  Some may require prior approval before an employee posts any information regarding the company.  In others, the employer may simply require that the employee state that any posting represents his own views and not that of the employer.  Employees should only write about areas within their control or areas of expertise and should make clear what their position is at their company.  They should keep abreast of company guidelines for using blogs, Twitter, Facebook or LinkedIn.

Workers may never use the internet to make discriminatory or offensive statements about someone.  They should not post political opinions or religious beliefs in the name of their employer.  Pretending to post in the name of another employee should serve as an immediate ground for termination.  Online behavior must reflect the company’s standards and values.

–Andrea Goldman

 

 

 

 

 

 

 

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