The DOL Has Brought Back Opinion Letters

During the Obama administration, the DOL stopped providing opinion letters in favor of adopting “Administrator Interpretations.”  But, now they are back.

In January, the DOL reissued 17 previously withdrawn opinion letters; and last week, the U.S. Department of Labor (DOL) issued two opinion letters – the first since 2009.

Opinion letters can be a great benefit to employers.  First, they address specific questions submitted to the DOL by employers and provide important compliance guidance.  It is essentially the DOL and Wage and Hour Division (WHD) providing employers with guidance on how they believe employers should be complying with the laws.

Second, opinion letters can provide an affirmative defense to employers in litigation. In order to take advantage of the affirmative defense, the opinion letter must fully outline the facts involved in its opinions and explain and justify its interpretations.  The employer must also show that their acts conformed with opinion letter’s guidance.

So What Do These Opinion Letters Say?

The first letter addresses whether a request for FMLA that includes a 15-minute break provided each hour due to a continuing a serious health condition, must be paid.  The DOL noted that although short rest breaks up to 20 minutes in length are ordinarily compensable, because the FMLA-protected breaks are given to accommodate the
employee’s serious health condition, the breaks predominantly benefit the employee and need not be paid.  The DOL concluded that employees covered by the FMLA must, however, receive the same number of paid breaks as their peers.

In the second letter, the Wage and Hour Division (WHD) addressed travel time for non-exempt employees who travel on the weekend.  The letter focuses on how to determine travel time pay for employees who have no regular work schedule.

Links to the DOL’s new opinion letters are located here and here.

FMLA and Caring for Aging Parents

A client posed a variation on the following question to me:

“I have an employee whose father is going in for surgery.  She has requested FMLA leave, and I understand his surgery would be considered a serious health condition.  However, she has a mother and sister who are also available to care for her father.  Are we required to grant FMLA when there are two other caretakers available, who will be providing the primary care?”

The FMLA regulations provide that eligible employees may take leave when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition.

The FMLA does not require that the employee be the primary caretaker for the qualifying family member.  Further, the employee does not have to be the only individual or family member available to care for the qualifying family member.  The employee need only provide a certification from the healthcare provider that includes a statement that the employee is “needed to care for” the qualifying family member.

According to the FMLA regulations, “needed to care for” may encompass both physical and psychological care.  For example, it includes situations where, because of the serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or is unable to transport him or herself to the doctor.

It also includes situations where the employee is needed to provide “psychological comfort and reassurance” for a parent who is receiving inpatient or home care and where the employee may be needed to substitute for others who normally care for the qualifying family member.

FMLA Is Not Limited to Parents, Spouses, and Children

It should be noted that the definition of child includes individuals for whom the employee stood or is standing “in loco parentis,” and the definition of parent includes individuals who stood “in loco parentis” to the employee.

In the case of an employee seeking leave to care for an aging family member, employers should not immediately dismiss a request for leave to care for a grandparent, aunt or uncle, or even a family friend.  In loco parentis refers to a relationship where one person assumes and discharges the obligations of a parent to a child, and does not require a biological relationship. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 (or 18 years or older and incapable of self-care because of a mental or physical disability).

Under the FMLA, to qualify as in loco parentis the person must have day-to-day responsibilities to care for or financially support a child. Applicable factors include:
• The age of the child;
• The degree to which the child is dependent on the person;
• The amount of financial support, if any, provided; and
• The extent to which duties commonly associated with parenthood are exercised

Based on the above, there may be circumstances where an employee will be eligible to take FMLA to care for an aging family member or friend who is not a parent.





When Employee Performance/Discipline and Disability Accommodation Are Involved, Documentation is Everything.

Under the law, the Americans with Disabilities Act requires employers to engage in what is called the interactive dialogue with any employee who requests accommodation for a disability. However, in reality, the ADA rarely (if ever) appears in the workplace when an employee proactively states: “I need accommodation for my recognized disability!”

It is far more common for HR to hear rumors about an employee’s medical condition months after the employee’s supervisor began informally accommodating the employee by allowing him or her to leave work to attend appointments, or an employee with known performance problems is disciplined and in turn blames the problems on a mental or physical health condition.

Unfortunately, when a disability is present or even suspected, terminating or demoting an employee once the issue of a potential disability has been raised can be a tricky process.  At the same time, performance issues should not be ignored. In fact, the opposite is true.  Performance issues should always be carefully documented and placed in employee files.  This documentation creates a record that will offer employers protection in the event that a discrimination claim is made.

By documenting performance problems in real time, you can avoid a situation where:

  1. The supervisor gets fed up with an employee’s poor performance or the accommodation that had been informally in place;
  2. The supervisor decides to terminate; and
  3. The employee claims he or she had no history of performance issues and is being discriminated against.

What, how and when to document matter.  We can help–contact us at 508.548.4888 or






When A Salary History Ban Includes More Than Just Salary…

As salary history bans continue to be enacted throughout the U.S., our clients are expressing increased anxiety over how exactly they should comply with this aspect of the pay equity trend sweeping the states.

The reason for the confusion? Most of the laws prohibit employers from requesting compensation information without specifically defining what that means.

For example, California’s version of the law prohibits employers from requesting and relying on salary history information, unless disclosed voluntarily by the applicant (without prompting), including questions about past “compensation and benefits.” In the absence of legislative guidance or regulations defining “compensation and benefits,” to avoid risk, employers should consider stock options and deferred and variable compensation as part of the broad category of salary history information.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions about any form of compensation or benefits history.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions related to any form of compensation or benefits history.  And, unless or until further guidance is issued to the contrary, the list below should be considered part of compensation history:

  • Salary
  • Commissions
  • Bonus
  • Equity
  • 401(k)
  • Benefits
  • Deferred and variable compensation.

Returning to California, while California’s laws now prohibits employers from asking about or relying on prior salary information in deciding whether to offer a job and setting pay, the law does permit employers to consider salary history information if an applicant, “voluntarily and without prompting,” discloses the information.

However, we caution all employers who choose to base starting salary on voluntarily disclosed information to keep in mind that the California Fair Pay Act (Lab. Code § 1197.5(a)(2)) precludes employers from relying on prior salary, by itself, to justify any gender, ethnicity or race-based disparities in pay.





Second Circuit Holds Sexual Orientation is Covered by Title VII

When the Supreme Court legalized gay marriage, it was clear that the tide had shifted, and employers altered their benefits and leave practices to comply with the new definition of spouse.  However, there is no Federal statute that protects against discrimination on the basis of sexual orientation or gender identity.  Over the past several years, many states have created these statutory protections, but efforts to amend Title VII to specifically protect these groups at the federal level have failed.

Instead, the courts have stepped in and found protection for discrimination against sexual orientation under the basis of Title VII’s prohibition on sex-based discrimination.  Until last year, these findings had been limited to discrimination based on sex-based stereotypes or nonconformity to gender norms (e.g. a woman did not dress in an feminine enough manner).

Late last year, in a surprise move, the Seventh Circuit, one of the most conservative courts in the country held that Title VII prohibits discrimination on the basis of sexual orientation.  The Eleventh Circuit reached the opposite conclusion, creating a split, and the Supreme Court declined to take up the Eleventh Circuit case in December.

On Monday, in a divided en banc opinion, the Second Circuit held the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The EEOC and Department of Justice made opposing arguments in the case, and the Court ultimately sided with the EEOC.  All of this means the Supreme Court may get another chance to make the ultimate determination on the issue.

If you are in a state that does not already prohibit discrimination on the basis of sexual orientation, and you are not currently including sexual orientation as a protected group in your anti-discrimination and EEO policies, it may be time to reconsider your position. The laws are changing quickly, and it is better to be out ahead than caught behind.  Not sure if you are in compliance with state and federal anti-discrimination laws?  Give us a call.


Intermittent FMLA – You Are Not Alone

We work with HR departments all over the country, answering compliance questions everyday. Over time, we have come to recognize patterns and issues that seem to plague HR universally.  One frequently raised issue: The incredibly painful intermittent FMLA. The DOL defines intermittent FMLA as leave taken in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule.

Unfortunately, for many employers, intermittent leave can become a nightmare – often abused and difficult to manage. Fortunately, the FMLA regulations offer some tools for employers to discourage abuse and better monitor leave. Here are our top 5 strategies for curbing the misuse of intermittent FMLA.

1. Question the Original Certification.

If the employee’s use of intermittent FMLA is inconsistent with the certification, this gives you a good starting point for curbing the abuse, or stopping misuse of FMLA before it starts.

It is always worth double-checking that the employee was actually eligible for FMLA in the first place.  Did he or she actually work 1250 hours in the last 12 months?  Was the original certification sufficient to establish a serious health condition?  Intermittent FMLA is often needed for chronic conditions that cause episodic rather than continuing incapacity.  Check the certification: if the employee (or the employee’s spouse or child) was not seen or was not scheduled to be seen by a healthcare provider at least twice within 12 months, the leave may not qualify as FMLA.

2. Monitor Compliance with the Certification

The certification will set forth the frequency and expected duration of the “flare-ups” and you have a right to track intermittent leave to ensure that the employee’s use is consistent with the certification.  If the employee’s use of leave exceeds what is outlined in the certification, let the employee know.  If the employee feels that he or she needs additional leave, you can provide him/her with a new certification for the healthcare provider to complete.  If the employee was using intermittent FMLA to fix his or her car, this will set the record straight.

The FMLA allows employers to insure that a certification calling for intermittent health-related absences is sufficient, valid and supports the need for intermittent leave. If you notice a pattern of absences that seem to occur at suspicious times like weekends and holidays, you should document it. Because evidence of a pattern of abuse is circumstantial, don’t jump the gun – document absences over a long enough period to be able to show a definite pattern.

3. Request Recertification.

The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave.  Employees may be asked for recertification:

  • Any time they seek to extend an existing FMLA leave;
  • For long-term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence;
  • If the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave;
  • If the employee is out on a leave that has been certified to extend for more than six months, the employer may seek recertification every six months; and finally,
  • Employers may ask for a new certification at the beginning of each leave year.

If you are looking to request a recertification at the start of a new FMLA year, check first to make sure the employee actually worked 1250 hours in the previous year.

4. Follow up on changed or suspicious circumstances.

The FMLA regulations also allow employers to seek recertification more frequently than 30 days if:

  • The circumstances described by the existing certification have changed; or
  • The employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.

“Changed circumstances” include a different frequency of duration of absences, increased severity, or complications from the illness. The regulations allow employers to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition. Changed circumstances are the scenarios where you’ve noticed the employee’s FMLA call-ins are exceeding the absences noticed in the certification, and the employee indicates a need for additional leave.  To mitigate risk, send the employee an email or letter first notifying him/her that the use of FMLA is exceeding the certification and that if more time is needed a new certification should be executed.

Information you receive about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition may cast doubt on absences. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.  Again, it is important to look at the certification.  It may be that the employee has a job that is precluded due to something like epilepsy, but other activities are allowed.

5. Make Sure the Employee Provides Appropriate Notice

The DOL regulations spell out that an employee is supposed to give the employer at least 30 days advance notice before using FMLA leave if the need for leave is foreseeable. If that is not practical because of a lack of knowledge or uncertainty about when the leave will need to begin or due to a change in circumstances or a medical emergency, notice is supposed to be given “as soon as practicable.” That means both as soon as possible and practical, taking into account all of the facts and circumstances in the individual case.  At the very least, the employee is expected to comply with the employer’s call out procedure absent extenuating circumstances.

That’s our top 5.  So, the next time you receive a request for intermittent FMLA leave, or have intermittent leave questions, ask yourself the following before you start banging your head on the wall repeatedly:

√    Is the certification complete and valid? When a certification has entries missing or is vague or ambiguous, you may ask the employee to provide complete and sufficient information. The request must be in writing and must specify the reason the certification was considered incomplete or insufficient. The employee then must provide the additional information within seven days. If the employee fails to provide the information, leave may be delayed or denied.

Even if the certification was initially complete, has the time period it covered expired?  If you have concerns that the certification is not legitimate, HR may contact the health care provider to insure that he or she actually prepared the certification, and to clarify handwriting or the meaning of a response, but the employee’s direct supervisor may not be the one to make that contact. During this process be careful not to request more information than what is required to authenticate or clarify the form.  This process can also be used at the recertification stage as well as with an initial certification.

√    Is the employee’s use of FMLA consistent with the certification?  If not, address it immediately with the employee reminding the employee of the certification, and letting the employee know that if something about the health condition has changed and additional leave is needed, you will want to go ahead and obtain a new certification from the doctor.

√    Do you suspect abuse?  If so – document and watch for patterns.

√    Are you enforcing your absence notification policy consistently?  When an employee on intermittent FMLA is absent, don’t assume it is for an FMLA qualifying reason.  Make sure they are following your call-in procedures and are not just leaving work whenever they feel like it.  On the other hand, if no one else is expected to call-in, don’t just enforce these policies for those on FMLA.

√   Have you considered the American’s with Disabilities Act (ADA)?  Any time an employee seeks FMLA leave for his or her serious health condition and indicates a need for ongoing treatment, it is important to consider whether the employee also qualifies as disabled under the American’s with Disabilities Act (ADA), and whether you may have an obligation to engage in the interactive dialogue and grant ongoing accommodations.  As a reminder, the ADA requires employers to provide qualified disabled employees with accommodation absent undue hardship.

√   Do you need a gut-check? Call us. We can save you headaches and time, cutting through the confusion quickly.  508-548-4888 or




Is Your Organization Prepared for the New Pay Equity Law?

Pay equity laws are not new. Federal law has prohibited pay discrimination for decades. However, current media attention to sex-based discrimination, including sexual harassment and pay inequities, has placed these issues in the spotlight. This focus creates new challenges—and opportunities—for compliance-minded employers to face this issue head-on, rather than waiting to defend a claim. Pay equity claims can cause an expensive distraction, but it doesn’t have to be that way. By understanding the law, and your obligations, you can rest assured you are protecting your organization, and your employees.

Understand The Law.

As we mentioned here, one of the strongest state laws in the country addressing equal pay for comparable work will take effect in Massachusetts on July 1, 2018. The sweeping Act makes many changes to existing law, including definitions of how to determine comparable work, and prohibiting organizations from requesting salary history before hire, to name a few. Additionally, employees will not be required to file a claim with the MCAD prior to filing a lawsuit, making this an expensive proposition for unprepared employers. The silver lining in these new obligations is the Act provides an affirmative defense to employers who perform a good-faith evaluation of pay practices, and create a plan for addressing identified disparities. Below is an overview of how that process can work to your organization’s advantage. And, if you are interested in getting in on that attorney client privilege, we’ve got you covered.

Perform a Pay Equity Evaluation.

In addition to the affirmative defense the Massachusetts Act provides employers, a pay equity assessment or audit is arguably the most efficient way to address the risk of a pay equity claim. The focus and depth of the analysis can vary depending on the size and needs of your organization, but there are three common goals:

  • Determine whether pay disparities exist that cannot be explained by other factors (remember, these are not factors that could explain the disparity, but factors that actually influenced the pay decision);
  • Identify weaknesses or gaps in compensation policies and practices that contribute to such disparities; and
  • Create a plan for addressing the disparities.

Exercise Attorney-Client Privilege. 

Any time you internally audit or review your internal policies and procedures that review may be subject to disclosure, either during a government agency investigation or during discovery in litigation. By using an attorney, that same audit or review becomes protected by the attorney client privilege. When we are talking about an audit that may reveal evidence of pay inequity, using an attorney becomes a key risk management tool. You won’t know beforehand what the audit will reveal, so the conservative approach is to take appropriate steps to protect the audit and its results to the greatest extent possible.

Make Appropriate Comparisons.

At its core, a pay equity assessment analyzes your organization’s pay data to determine whether there are disparities. A typical analysis compares the average pay of men to the average pay of women (or other protected groups) within relevant job classifications to determine whether disparities exist. Under the federal Equal Pay Act, for example, this means comparing employees who perform jobs that require equal skill, effort and responsibility and are performed within the same establishment under similar working conditions.

Under the new Massachusetts law, this comparison is extended to include “comparable work,” defined as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” In other words, employers need to use more than job titles to make an appropriate comparison.

Disparities Require a Deeper Dive.

If your pay equity analysis reveals pay disparities within certain jobs, it will be necessary to more closely examine the affected groups to identify whether other relevant factors explain the pay differences. These factors can be objective or subjective and are usually unique to the particular job or industry. For instance, compensation for some jobs is based on the quantity or quality of achievements, such as sales revenues, patents filed, degrees achieved or publications made. Differences may also be attributed to market data or difficulties in filling the position that required paying a higher salary.

Review Compensation Practices.

Often, pay disparities are not the result of intentional discrimination, but a variety of factors ranging from salary history to lack of clarity in the organization’s pay policies and practices. Even after the pay analysis is complete, it is important to consider whether modifications must be made to existing compensation policies, procedures and practices in order to help prevent unexplained disparities from continuing to occur. Failure to take this step could create an ongoing risk of future pay disparities. The following questions will help identify whether policies and practices should be examined:


  • Are there written guidelines that define the factors to be considered when making pay decisions?
  • Are decision makers held accountable for complying with compensation related policies and guidelines?
  • Do different departments or teams within the organization operate independently and without oversight when making compensation related decisions, rather than a cohesive approach within the organization?
  • Do the organization’s pay practices require evidence to support the factors that are used to make pay decisions, such as written performance evaluations or objective market data?
  • Is there documentation recording the reasons for pay decisions, particularly where those decisions deviate from expectations?

Update Job Descriptions and Performance Evaluations.

Job descriptions alone are not sufficient to show that jobs are equal. However, they can provide the foundation for demonstrating that certain jobs are either comparable or should be differentiated for purposes of salary comparison. Conversely, poorly drafted job descriptions can adversely impact an organization’s ability to defend themselves when confronted with pay equity claims. Additionally, because performance reviews generally impact salary directly, a flaw in the performance evaluation process may affect the legitimacy of pay decisions (and other employment decisions) that are tied to those results. For this reason, it is important that managers and any personnel responsible for setting salary levels are trained and understand the importance of accurately documenting performance issues and achievements.

Create a Plan.

The final step in any pay equity assessment is to make a plan for addressing pay disparities that are identified. Employers cannot lower the pay for some employees in order to equalize pay, so the righting of identified inequities can take time.

Don’t Wait.

With the renewed focus on pay equity—whether across gender, race or other protected lines—employers can expect increased scrutiny of their pay decisions. Conducting an effective pay analysis will help ensure legal compliance and provide useful insight into the effectiveness of existing compensation practices. In Massachusetts, it will also provide an affirmative defense in the event of a pay equity complaint. And finally, to protect the process and your findings, strongly consider the use of an outside attorney. This will give you the benefit of the affirmative defense coupled with the protection of the attorney-client privilege.  We are here to help.


Time to Think About Interns

As second semester begins, many undergraduates are considering their summer employment options, and many are looking for internships.  In the past, this has been an area fraught with risk for unwary employers, particularly in labor friendly states like California and Massachusetts.  The DOL is making a new push for the use of unpaid interns in the private sector, which is a major departure from its position during the Obama administration.  Below is an overview of the DOL’s new intern guidance (located here), as well as ongoing risks for employers to consider.

When determining whether an intern is properly classified under the Fair Labor Standards Act (FLSA), courts have identified the following seven factor test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The test is a flexible one, and no single factor is determinative, which means a court will look at the unique circumstances of each case.

Think you may be ready to take the plunge?  Before you do, consider the risks inherent in using unpaid interns.

  1. Employers must also comply with state law.  
Under Massachusetts law, most for-profit companies must pay interns at least minimum wage.  The Massachusetts Minimum Fair Wage Law and Regulations (the “Wage Act”) specifically states that the following five types of work are the only occupations permitted to be performed by unpaid interns):
  1. Professional service;
  2. Agricultural and farm work;
  3. Work by persons being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions;
  4. Work by members of religious orders; or
  5. Outside sales work regularly performed by outside salesmen who regularly sell a product or products away from their employer’s place of business and who do not make daily reports or visits to the office or plant of their employer.  (M.G.L. c. 151, § 2).
Unlike the FLSA, as outlined above, the training exception to the Wage Act is limited to only charitable, educational or religious institutions, removing the possibility that a for-profit company could utilize the exception for an unpaid internship program structure.   Additionally, “professional service” is a restricted group, limited to such professions as a doctor, lawyer or engineer and not the more commonly sought undergraduate internships.
In short, in Massachusetts, unless the organization is charitable, educational or religious, or the internship is for a professional service (as defined above), interns must be paid at least minimum wage.
2.  The DOL does not determine whether your interns should be paid, the courts do.
Over the past several years, a number of high profile cases involving interns have made their way through the courts.  Companies like Fox Searchlight and GM have been sued for failing to pay interns.  While the specific factors a court will examine will vary depending on jurisdiction, there are a few major factors the courts will be looking at.
Is the training similar to that the intern would receive at a vocation school?
In other words, is the intern learning the skills of the trade for which he or she is interning?  If your accounting intern is running errands, buying coffee, and answering phones, you may face an issue.

Is the training for the benefits of the intern, or does the employer derive an immediate advantage from the activities of the interns?

In addition to the intern benefiting from the internship, the company must also show that it received no immediate advantage from the intern’s work.  While it is acceptable for the performance of tasks by interns to have some benefit, this limited benefit should be counter-balanced by impediments to the employer’s operations in both time and economic costs in teaching the intern the activities, reviewing any work performed as well as economic costs to the business of participating in the program.

Do the interns displace regular employees?

If the intern is filling a position that would otherwise be filled by a paid employee, the intern should be paid at least minimum wage.
Unsure about interns?  We can help.

The Case for Ditching the Salary History Question

This month, California Governor Jerry Brown signed into law AB 168, which prohibits employers from requesting salary history from applicants.  The bill also requires employers, upon reasonable request, to provide the pay scale for a position to an applicant applying for employment.

According to the National Women’s Law Center, in 2017 nearly half of states considered legislation that would ban the salary history question in hiring. Massachusetts adopted a salary history ban in 2016. In 2017, California, Oregon, Delaware, Puerto Rico, San Francisco, New York City, Pittsburgh (Philadelphia’s ban is on hold pending a legal challenge), and New Orleans also passed salary history bans.  Add to this the fact that 42 states offered Equal Pay legislation in 2017, and what do you get?  Serious risk for employers – everywhere.

Much of the legislation regarding salary history is predicated on the theory that asking women about salary history perpetuates disparity in pay because women have historically earned less than men for performing the same work.  However, a recent survey released by PayScale suggests that the salary history question can also hurt female job candidates in another way.  According to PayScale’s survey, a woman who is asked about her salary history and declines to disclose that information earns 1.8 percent less than a woman who discloses her salary history. If a man declines to disclose, he gets paid 1.2 percent more on average.

While we can debate about the reasons for this disparity, the results highlight a significant risk to employers: The salary history question results in lower starting salaries for women; and if women are starting out at a lower salary than their male counterparts, there is a heightened risk of a pay equity claim later regardless of whether the employer actually has discriminatory pay practices. 

Still not convinced?

That’s okay.  Many of our clients have serious concerns that these new salary history prohibitions will limit employers’ ability to attract talent and negotiate competitive salaries.  However, where you see limitations, I see risk management opportunity.

Built in to California’s AB 168, is an obligation that creates an opportunity for all employers to reduce their overall risk for a pay equity claim.  Set clear salary ranges based on labor market data, and share that information with applicants.  It will set expectations at the outset, and if it is based on market data, it will attract talent.  Then, use the candidate’s job experience, skills, education, and performance in the interview process to set the salary.  This will ensure that the employer has a justifiable position with regard to each employee’s pay at the outset, and will be less likely to have a pay equity problem later.

By avoiding the salary history question altogether, employers don’t have to worry about the extensive risks these bans create.  Salary history questions in online applications are problematic because employers in a state without a salary history ban have to worry about out of state job applicants filing a complaint based on a salary history ban the employer was unaware of.  There is further risk due to the variances in the different state laws.  Some salary history bans allow employers to rely on salary history that has been volunteered by applicants, while other pay equity laws prohibit employers from relying on salary history alone regardless of the source.  Multi-state employers in particular will find it increasingly difficult to comply with pay equity laws while relying on salary history when setting pay.

By ditching the salary history question, employers can comply with salary history bans now, and limit their risk for pay equity problems later.

Massachusetts Supreme Judicial Court Says Marijuana Is a Reasonable Accommodation for Disability

Well, we knew this day would come.  Despite the fact that marijuana remains a Schedule I Controlled Substance under Federal law (defined as a drug or other substance  that has no currently accepted medical use in treatment in the United States), the Massachusetts Supreme Judicial Court just held that marijuana is per se a reasonable accommodation for disability.  In other words, employers in Massachusetts that test for marijuana need to immediately amend their policies and procedures to allow for the possibility of accommodating an applicant or employee’s medical marijuana use.  Deep breaths.

This is going to create a giant mess, you say.  You are not wrong, but at least the SJC outlined places where employers can demonstrate undue burden when they get sued.

But it does not necessarily mean that the employee will prevail in proving handicap discrimination…For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees. …Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana…In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.

As I said, deep breaths.  All is not lost, and compliance is possible.

As a reminder, both Massachusetts and federal law require employers to engage in an interactive dialogue with qualified disabled employees who request reasonable accommodation.  Indeed, it was Advantage Sales and Marketing’s refusal to engage with Christina Barbuto, rather than their drug testing practices that the Supreme Judicial Court appears to take issue with.   MCAD Guidelines, § VII.C  advise that once a handicapped employee notifies the employer of need for accommodation to perform essential functions of job, “the employer should initiate an informal interactive process” with the employee to “identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations”).  The SJC makes clear that marijuana use may cause undue hardship for some employers, but employers cannot make that determination unless or until they engage with the employee to determine whether a qualifying disability exists, and whether factual circumstances surrounding the employee’s request would impose an undue hardship on the employer.

There are a few things to keep in mind:

  1. This decision does not address recreational marijuana use.  Employers do not have to allow employees to use marijuana at work, and can continue to test for marijuana use and terminate employees who fail the test.
  2. This decision does not find that Massachusetts law has created a protected class for medical or recreational marijuana users.
  3. This decision will not limit employers ability to regulate marijuana use in the workplace.  Employers do not have to allow employees to use marijuana in the workplace.

So what steps should an employer take if an employee notifies them that the employee is a medical marijuana user?  

Engage with the employee to determine the nature of the employee’s impairment, the nature of the accommodation the employee is requesting (is the employee asking to use marijuana at work, or merely notifying the employer that he or she will fail a drug test?), and whether there are alternative accommodations that will allow the employee to perform the essential functions of the job.  This process should be clearly documented, and in many cases will include the employee’s healthcare provider.  Depending on the employee’s requested use or the nature of the employee’s position, the request to use marijuana may not be reasonable or it may impose an undue hardship on the employer. However, the employer cannot come to this determination unless or until they engage with the employee.

And, it wouldn’t hurt to update your drug use and drug testing policies.