Court stops OSHA vaccine mandate

January 14, 2022:- Last year, President Biden issued a vaccine mandate through the Occupational Safety & Health Administration (OSHA). The regulation that OSHA issued would have required employers with 100+ employees to ensure that their employees either received vaccination against COVID-19 or to wear masks and undergo weekly testing. Yesterday, the Supreme Court of the United States issued a stay of OSHA’s regulation, effectively putting an end to it.

The case is NFIB v. Dept. of Labor, 595 U.S. _____ (2022).

The court pointed out that COVID-19 is a life hazard, not an occupational one:

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

Congress gave OSHA the limited task of regulating workplace safety, not the unlimited task of regulating the safety of society as a whole:

Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

The court pointed out the difference between job-specific risks and the general, everyday risks that we all face both at work and elsewher:

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible… But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.

Again, the statutes that Congress has enacted that give OSHA the legal authority to issue regulations confine that authority to occupational safety, not to safety in general. If Congress wishes to give OSHA the authority to regulate the safety of everyone, everywhere, all the time, then Congress needs to do so via statute. OSHA cannot just give itself that power, even at the direction of the President. The court’s decision recognizes this basic principle of the separation of powers.

By the way, here in Massachusetts, according to the Department of Health dashboard, the number of people currently in hospital with COVID-19 is 3,180. Of that number, 1,505 (approximately half) are fully vaccinated.

Vaccination mandates and employer liability

January 10, 2022:- An op-ed in today’s edition of the Wall Street Journal titled “Omicron makes Biden’s vaccine mandates obsolete” will prove important, I think. It states that the vaccinations that are supposed to protect us against COVID-19 may make us more susceptible to catching the latest version of the disease known as the Omicron variant:

One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people.

One of the two co-authors is Jed Rubenfeld, a professor at Yale Law School. The other is Dr. Luc Montagnier, who won the 2008 Nobel Prize for Physiology or Medicine. But be advised, Wikipedia warns us about Dr. Montagnier:

During the COVID-19 pandemic, Montagnier was criticised for using his Nobel prize status to “spread dangerous health messages outside his field of knowledge”[6] for promoting the conspiracy theory that SARS-CoV-2 was deliberately created in a laboratory. Such a claim has been refuted by other virologists

Of course, Wikipedia also states that the total number of deaths from COVID-19 in China (pop. 1.4 billion) is about 5,000, which is roughly the same as the death toll in Ireland (pop. 5 million). According to Wikipedia:

Around March 2020, there was speculation that China’s COVID numbers were deliberately inaccurate, but now China’s COVID elimination strategy is considered to have been successful and its statistics are considered to be accurate

When weighing the credibility of Wikipedia on the subject of Dr. Montagnier, it’s worth considering the credibility of Wikipedia on the subject of the Chinese government’s COVID-19 statistics. To be a little more blunt, if you believe that the number of COVID-19 fatalities in China is the same as the number in Ireland, perhaps I could interest you in the purchase of a certain bridge.

So with that word of caution about Dr. Montagnier from Wikipedia, and my own word of caution about Wikipedia’s word of caution, let me move on to the legal implications.

If the vaccinations make people more susceptible to COVID-19, what are the implications for those employers who imposed a vaccine mandate on their employees? I have in mind the companies that gave their workers a simple choice: Either (A) get vaccinated; or (B) you’re terminated.

And what if the workers who chose option A (i.e. they got vaccinated) then caught COVID-19 — not in spite of but because of the vaccine — and became sick? Do they have any legal recourse, and if so against whom?

First, are the pharmaceutical companies liable? No, obviously not.

Second, is the government liable for urging you to do it? I doubt it (that’s what the National Vaccine Injury Compensation Program is for).

Is the employer liable? I wonder.

If you are a public employee and are curious about your rights, feel free to use the contact form and sign up for a no-charge consult.

Court nixes vax mandate

On November 12, 2021, the Fifth Circuit Court of Appeals affirmed its decision to stay (pause) the COVID-19 vaccine mandate that President Biden issued via the Occupational Safety and Health Administration (OHSA). You can read the decision here.

The court had several reasons for finding the mandate unlawful, including the following:

[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.

With regard to the supposed “emergency” that could justify the OHSA rule, the court added:

And, of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.

As with the President Biden’s use of the CDC to ban evictions for non-payment of rent, this latest attempt to usurp the legislative function has failed, for the time being anyway.

President Joe Biden

Adam Schultz, photographer

Official portrait of President Joe Biden, taken in the Library room at the White House

https://www.loc.gov/resource/ppbd.01261/

New MCAD decisions published

March 4, 2020:- The Massachusetts Commission Against Discrimination (MCAD) has published three new decisions (link).

One of the cases (Chase, et al v. Crescent Yacht Club, et al) involves an award of attorney’s fees and cots in the amount of approximately $83,000.00 on top of a damages award of almost $30,000.00.

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Peter Vickery, Esq.

New rules in effect at MCAD

February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.

For my earlier post on the subject, click here.

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New MCAD rules: I’ll drink to that.

Progress at the MCAD

January 15, 2019:-  The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.

Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.

The new proposed rules give the Investigating Commissioner clear authority to issue a stay.

Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.

Draft 804 CMR 1.13 (9)(b)(3). Here is a link.

Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.

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Peter Vickery, Esq.

 

Marijuana: respect for voters trumps supremacy clause

July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.

The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.

Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.

Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.”  If a State does not like a Federal law, the judges of that State may not repeal it.  Nullification is not an option.  I believe we fought a war about this.

However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

That is a very difficult sentence for me to understand.  Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.

After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC.  Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.

Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.

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Peter Vickery, Esq.

New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

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Peter Vickery, Esq.

Speed-up at MCAD

February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.

In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.

Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.

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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.

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

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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Tick, tock: Justice delayed

Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.

So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.

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Attorney Peter Vickery

No sex please, we’re Bay Staters

July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:

Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.

So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.

And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”

Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.

Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.

In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:

Q. Does your employee Valery earn more than your employee Valerie for comparable work?

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery

 

 

 

 

 

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

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Peter Vickery, Esq.

Senses working overtime

May 2016:- The federal Department of Labor has decided that from December 1, 2016, employers will have to pay overtime to salaried employees who earn up to $47,476.00 annually.  The current threshold is half that: $23,660.00.  Is the administration’s goal to shift more workers from salary to hourly, or is that just a likely byproduct?  In the words of English rock legends* XTC:

I’ve got one, two, three, four, five, senses working overtime,

Trying to take this all in.

For small business-owners wondering what the overtime rule will mean for them, click here for a brief guide from the NFIB.

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Peter Vickery, Esq.

* The word “legends” may exaggerate the band’s significance somewhat, I admit. Perhaps “most legendary 80s band from Swindon” would be fairer.

Older, white man wins discrimination case

Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.”  The older White man sued for age and ethnicity discrimination and won.

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A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress.  You can read the full decision (issued January 20, 2016) here.

After-acquired evidence? Status quo, says SJC

February 4, 2016:- Employment lawyers have been wondering, “Will Massachusetts adopt or reject the after-acquired evidence doctrine?” Today we have the answer: No.

If an employer terminates an employee for no cause and later discovers a reason that would have provided grounds for discharge, later on in court may the employer rely on that after-acquired evidence as justification? In states with the after-acquired evidence doctrine, the answer is yes. We are not one of those states. But we do not positively not have the doctrine either, if you see what I mean.

In announcing its decision in EventMonitor, Inc. v. Leness, the Supreme Judicial Court chose not to reach the issue of after-acquired evidence. So for the time being, the doctrine is neither accepted nor rejected.

I will post a more detailed account shortly.

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Churchill victorious in 1945 after all

In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”

But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .

The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.

The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.

The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.

This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.

Peter Vickery July 2012
Peter Vickery, Esq.