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Sep 16, 2010

Massachusetts Employment & Labor Report - September 2010

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SJC Rejects MCAD Interpretation of Massachusetts Maternity Leave Act

In Global NAPs, Inc. v. Awiszus, the Massachusetts Supreme Judicial Court (SJC) found that the Massachusetts Maternity Leave Act (MMLA) does not provide job protection to employees after eight weeks of maternity leave, even where the employer agrees to allow an employee to take more than eight weeks of leave. The SJC noted, however, that such employees may have remedies under different theories, such as breach of contract.

Sandy Stephens worked as a housekeeper for the president of Global NAPs. After becoming pregnant, Stephens notified Global that her last day of work before maternity leave would be July 14, 2000. Global allegedly informed Stephens that she could take maternity leave until October 2, 2000—more than eleven weeks of leave—if she had a cesarean section. Stephens gave birth by cesarean section. On September 27, 2000, more than eight weeks after her maternity leave commenced, Stephens contacted Global regarding her return to work. Global informed her that she had been fired.

Stephens filed a claim against Global, alleging that it violated the MMLA by terminating her during her maternity leave. After losing at trial, Global indicated its desire to appeal, but its attorneys missed the deadline for filing an appeal. Global subsequently filed a malpractice action against its attorneys. In order to prevail in that action, Global had to demonstrate that its appeal would have been successful. Accordingly, upon appeal of the malpractice action to the SJC, the Court examined the merits of Stephens’s claim that Global had violated the MMLA.

The SJC noted that the Massachusetts Commission Against Discrimination (MCAD) had issued guidelines on the MMLA, stating that if an employer grants a longer maternity leave than the eight weeks required under the MMLA, the employer must clearly inform the employee if it does not intend for the statute’s job protections to apply to the period beyond eight weeks. However, the SJC found that the MMLA clearly states that employees are only protected under the MMLA for maternity leave of up to eight weeks. Therefore, the MCAD’s guidelines were inconsistent with the MMLA and unenforceable. Since the MMLA does not provide job protection to employees beyond eight weeks of maternity leave even where the employer agrees to permit a longer leave, Global did not violate the MMLA when it terminated Stephens, regardless of its prior agreement to allow her to take more than eleven weeks of leave.

This decision limits employee protection under the MMLA to an eight-week leave period, even where employers agree to extend the leave beyond that period. Nevertheless, as noted by the SJC, employers who offer more than eight weeks of maternity leave may still be liable for adverse employment actions that occur beyond the eight weeks based on other theories, such as breach of contract.

Employer Not Liable to Pedestrian Injured in Employee’s Drunk Driving Accident

In Lev v. Beverly Enterprises-Massachusetts, Inc., the SJC held that an employer was not liable to a pedestrian who was struck by a vehicle driven by an intoxicated employee who was driving home from an off-site meeting.

John Ahern, an employee of a rehabilitation center owned by Beverly Enterprises-Massachusetts, met his supervisor at a restaurant after working from 7:00 a.m. to 5:30 p.m. While at the restaurant, the two discussed work-related issues, and Ahern purchased and consumed two alcoholic beverages. While driving home from the restaurant, Ahern struck and severely injured pedestrian Charles Lev.

Following Ahern’s conviction for driving under the influence, Lev sued Beverly Enterprises, alleging that Ahern was acting within the scope of his employment when he was driving home and that Ahern’s supervisor was responsible to prevent Ahern from driving while intoxicated. The Massachusetts Superior Court granted summary judgment in favor of Beverly, and the Massachusetts Appeals Court affirmed before the case came before the SJC.

In affirming both lower courts’ findings, the SJC first examined Lev’s argument that Beverly should be liable for Ahern’s negligence because he was acting within the scope of his employment. The SJC determined that Ahern was not because once he began his commute home, he was no longer under Beverly’s direction or control. Accordingly, Beverly could not be liable for Ahern’s actions while driving home.

The SJC then found that Beverly could not be liable as a social host because Beverly did not control or furnish the alcohol that Ahern consumed. The SJC noted that the restaurant served the alcohol and that Ahern ordered and paid for his drinks. The SJC also ruled that Beverly did not owe Lev a duty of care, and therefore was not liable, since it could not have reasonably foreseen a need to take affirmative action to protect Lev, nor could it have anticipated the harm to Lev for its failure to act.

Finally, the SJC rejected Lev’s argument that Beverly was liable by virtue of its failure to enforce its policy prohibiting alcohol consumption while conducting company business. The Court held that such policies do not create liability to third parties where no duty to third parties otherwise exists, as was the case here. The Court also found significant that the policy explicitly stated it was intended to protect residents, associates, and visitors to its facilities without mentioning the general public.

While the case demonstrates that employers may not be liable for alcohol-related injuries to third parties caused by their employees, employers should be aware that they could face liability under different circumstances. For example, the outcome in Lev might have been different if Ahern was returning to work from a meeting, if Beverly controlled or furnished the alcohol, or if its policy had been worded differently.

Reassignment of Essential Duty and Creation of New Light Duty Position Are Not Reasonable Accommodations

In Godfrey v. Globe Newspaper Co., Inc., the SJC recently affirmed the dismissal of an employee’s claim of disability discrimination, finding his employer had no obligation to assign an essential function of his position to another employee. Nor was the employer obligated to give him a light duty assignment where the employer had not previously given such accommodation to others in the same position.

Douglas Godfrey, an assistant press foreman for the Globe Newspaper Company, was seriously injured when he fell while working. When Godfrey returned to work following his injuries, he was unable to climb the press machines that produce the Globe’s newspapers. Shortly after Godfrey returned to work, the Globe terminated his employment because he purportedly failed to submit his workers’ compensation payments to the Globe, who paid Godfrey his full salary during his leave. After his termination, Godfrey, without acknowledging his termination, sent a letter to the Globe seeking a light duty assignment to accommodate his inability to climb the press machines. The Globe refused.

Godfrey filed suit in Superior Court, asserting among other claims that the Globe had violated Massachusetts General Laws ch. 151B (Chapter 151B) by not accommodating his handicap. The Superior Court granted the Globe’s motion for summary judgment on all claims, but the Appeals Court vacated the Superior Court’s decision on the Chapter 151B claim.

Affirming the Superior Court’s decision in favor of the Globe on the handicap discrimination claim, the SJC concluded that Godfrey was not a qualified handicapped person because he could not perform the essential functions of his position, with or without a reasonable accommodation. First, the SJC determined that climbing the press machine was an essential function of the position based on Godfrey’s own admission that it was an essential function. As Godfrey could not perform that function, the SJC ruled that he was not a qualified handicapped person. The Court also held that the Globe was not obligated to assign Godfrey’s responsibility for climbing the press machine to another employee because elimination of an essential function is not a reasonable accommodation. In addition, the SJC found that since the Globe had not previously offered a light duty assignment to an assistant press foreman, it was not obligated to offer light duty to Godfrey because creating a new position is not a reasonable accommodation.

This decision shows that under Chapter 151B, an employer need not reassign an essential function to accommodate a disability. It also provides guidance on light duty assignments. Before granting light duty to a position for the first time, the employer should be aware that doing so may impact the employer’s obligations when faced with similar requests in the future.

Appeals Court Addresses Grounds for Wrongful Discharge in Violation of Public Policy

In Mercado v. Manny’s T.V. & Appliance, Inc., an appliance installer, who told his employer shortly before he was terminated that he did not want to continue installing appliances illegally, sued the former employer for wrongful discharge in violation of public policy. The Appeals Court held that the circumstances of the employee’s termination could provide grounds for a public policy claim.

Angel Mercado installed kitchen appliances as an employee of Manny’s T.V. & Appliance. He did not have a plumber’s or electrician’s license, even though at least one of those licenses is required to install kitchen appliances. He also was not familiar with the Massachusetts codes for plumbing or electrical work. Mercado’s installations allegedly caused several gas leaks, at least one of which resulted in an injury.

A state inspector discovered that Mercado was installing appliances without a license and ordered him off the job. Mercado informed his service manager, and the service manager allegedly instructed him to continue his installations while avoiding the inspector in the future. Mercado responded that he did not believe that he should install appliances anymore, but he followed instructions and returned to work. A month later, Manny’s terminated Mercado’s employment, ostensibly for cursing at his supervisor.

Mercado filed suit, alleging wrongful discharge in violation of public policy, among other claims. The matter proceeded to trial, and the Superior Court granted Manny’s motion for a directed verdict on the grounds that Mercado failed to present sufficient evidence that he was required to continue performing illegal appliance installations. Mercado appealed the Superior Court’s judgment.

The Appeals Court first distinguished between a termination for protesting an internal policy and a termination for protesting a matter of public policy. The Court stated that the former could not be grounds for a wrongful discharge claim, even if the employee’s actions were “socially desirable.”

The Court further held that installing appliances without a license was a matter of public policy rather than merely an internal matter. It found that the intent behind the plumbing and electrical licensure requirements is to protect public safety. The fact that Mercado caused several dangerous gas leaks underscored the risks to the public presented by illegal appliance installations. The Court viewed the circumstances of this case akin to those of other cases in which courts have allowed a public policy exception to the rule of at-will employment. The Court therefore overturned the Superior Court, ruling that the jury could decide whether Mercado’s opposition to the unlawful installation of appliances was a factor in his termination.

While wrongful discharge in violation of public policy is an historically narrow cause of action, this case shows that it may be a viable claim when employees are terminated for opposing unlawful employer decisions that threaten public safety. At the same time, the case shows that the claim apparently does not extend to employee opposition to purely internal policies, even when the opposition is “socially desirable.”

Court Finds Chapter 151B Does Not Prohibit Discrimination Based on Association with Handicapped Spouse

The Superior Court recently held in Brelin-Penney v. Encore Images, Inc. that a non-handicapped employee could not bring a handicap discrimination claim under Chapter 151B on the basis of her employer’s alleged discrimination of her handicapped spouse. In so doing, the Superior Court rejected earlier findings by the MCAD recognizing such claims based on “associational standing.”

Tina Brelin-Penney and her husband, Chelsea Scott, worked for Encore Images, an employer of fourteen people. Scott, whose position involved moving boxes, suffered an injury in September 2006 that eventually rendered him unable to do any lifting. He took a leave in November 2006. Scott did not return to work nor did he ever provide Encore with an anticipated date of return. Brelin-Penney alleged that while Scott was on leave, Encore harassed her about Scott’s return and eventually terminated her employment.

Both Scott and Brelin-Penney brought handicap discrimination claims against Encore under Chapter 151B. The Superior Court rejected Scott’s claim because after his injury he could no longer lift any weight, and was therefore not a “qualified handicapped person.” Further, the Court found that allowing Scott to continue on an indefinite leave or transferring him to a light-duty position with no lifting were not reasonable accommodations.

Brelin-Penney claimed that Encore discriminated against her in retaliation for Scott’s filing of a workers’ compensation claim. She asserted that even though she was not handicapped, she was entitled to bring an “associational standing” claim under Chapter 151B by virtue of her relationship to a handicapped person. In support of her claim, Brelin-Penney argued that the MCAD had previously recognized discrimination claims brought by individuals based on their association with persons within a protected class.

The Superior Court rejected Brelin-Penney’s claim. It acknowledged that the MCAD had recognized associational standing claims and that the MCAD was entitled to some deference, but added that the MCAD is not authorized to enlarge statutory language. The Court then noted that while the Americans with Disabilities Act (ADA) prohibits employers from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association,” Chapter 151B includes no such provision. Since Chapter 151B does not provide associational standing and since Brelin-Penny was not herself a handicapped individual, the Court ruled that she could not assert a claim under Chapter 151B.

Since the ADA’s prohibition against association discrimination applies to employers of fifteen or more individuals, this case is primarily significant to employers who, like Encore, have fourteen or fewer employees. This decision provides a good defense for such employers if faced with an associational standing claim under Chapter 151B.

Employee Working Under Collective Bargaining Agreement Cannot Bring Tortious Interference Claim

In O’Donnell v. Boggs, the U.S. Court of Appeals for the First Circuit held that an employee whose employment was governed by a collective bargaining agreement (CBA) could not bring a state law tortious interference claim because of the existence of the CBA.

Paula O’Donnell began working as a teller for the Boston Globe Employees Credit Union in 1974. O’Donnell was a unionized employee, and a CBA governed her employment. O’Donnell eventually became a bookkeeper. Shortly thereafter, Marion Doucette, the Credit Union’s CEO, hired her own daughter as a bookkeeper. O’Donnell complained to the Credit Union’s board that Doucette’s daughter was not qualified for the position and was being paid more than the CBA permitted. She also complained that the daughter engaged in misconduct, including fraud. O’Donnell alleged that after her complaints, Doucette and board members launched a campaign of retaliation and intimidation, which resulted in O’Donnell’s inability to work due to stress. After O’Donnell failed to provide medical documentation to support her prolonged absence, and after she exhausted her sick leave and vacation time without returning to work, the Credit Union terminated her employment. O’Donnell’s union filed a grievance claiming unjust termination, but later withdrew the grievance, stating that the Credit Union had not violated the CBA.

O’Donnell filed suit in Superior Court against Doucette and the Credit Union’s board members for tortious interference with contractual relations. O’Donnell claimed that the CEO and board members knowingly (1) prevented her from performing her job and caused her to abandon her work; and (2) induced the Credit Union to terminate her employment. After removing the case to federal court, the defendants argued that O’Donnell’s tortious interference claims should be dismissed because resolution of the claims required interpretation of the CBA. If O’Donnell’s claims required interpretation of the CBA, O’Donnell would be restricted to remedies available under the CBA pursuant to the Labor Management Relations Act. The U.S. District Court for the District of Massachusetts agreed with the defendants.

The First Circuit affirmed, finding that O’Donnell’s claims could not be resolved without interpreting the CBA. Specifically, it would be necessary to determine whether Doucette’s actions were proper under the CBA’s management rights clause, which allowed management to take “action which the credit union deems desirable to the conduct of its business.” It would also be necessary to establish whether the board’s actions were proper under the CBA’s terms concerning leaves of absence and permissible discharges. Because interpretation of the CBA was required, the Court concluded that O’Donnell could not bring a tortious interference claim, but rather would need to pursue remedies under the CBA.

This decision shows that employees who are governed by CBAs are limited in the state law claims, such as tortious interference, that they can bring outside of the bounds of the CBA.

Table of Cases

Brelin-Penney v. Encore Images, Inc., No. ESCV2008-2244-B (Mass. Super.
Ct. May 28, 2010) (Kaplan, J.).

Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (2010).

Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113 (2010).

Lev v. Berverly Enterprises-Massachusetts, Inc., 457 Mass. 234 (2010).

Mercado v. Manny’s T.V. & Appliance, Inc., 77 Mass. App. Ct. 135 (2010).

O’Donnell v. Boggs, 611 F.3d 50 (1st Cir. 2010).

Upcoming Breakfast Briefing

September 16, 2010: “Resetting the Benefits Agenda-Employer Challenges Under Health Care Reform and Other Benefits Laws for Q4 2010 and 2011”