The end of 2014 brought some important changes to the employment law landscape in Massachusetts and nationally. Local employers should be aware of the following developments and make appropriate changes to policies in 2015. 

Paid Sick Time

As a result of a ballot initiative, Massachusetts employers with more than 11 employees will be required to provide paid sick time to employees beginning in July 2015. Employers with fewer than 11 employees must also allow the accrual of unpaid sick time.

The law requires employers of more than 11 employees to grant employees one hour of paid sick time for every 30 hours worked up to a maximum of 40 hours per year, so both full-time and part-time employees are eligible to accrue such paid time off. Full-time exempt employees are deemed to work 40 hours per week unless their normal workweek is less, in which case the employer can use those normal hours to determine accrual of sick time. Covered employers must allow employees to carry over up to 40 hours of unused sick time into the next calendar year, but employees cannot use more than 40 hours of sick time in a calendar year.

Notably, employers are prohibited from using an employee’s earned sick time as a negative factor in any employment action, including an evaluation, disciplinary action, or termination. This is similar to the prohibition in the federal Family & Medical Leave Act that precludes employers from using an employee’s use of FMLA time as a negative factor in the employee’s performance assessment or discipline.

In addition, employers cannot require an employee to provide a doctor’s note to substantiate the need for time off unless the employee is out of work for 24 consecutively scheduled hours.

Unlike paid vacation time, employers are not required to pay out accrued but unused sick time upon an employee’s termination.

Employers with more than 11 employees should make sure their policies provide for the minimum paid sick time required by this law effective July 1, 2015. Employers who already provide paid sick time that is at least as generous to employees in terms of total accrual, rate of accrual, and carryover do not need to make changes to their policies. For specific feedback about particular policies, please contact us. 

Domestic Violence Leave

As of August 2014, Massachusetts employers with 50 or more employees in the Commonwealth must provide up to 15 days of unpaid time off in any 12-month period if the employee or a covered family member is a victim of abusive behavior and the employee needs time off for medical care, counseling, victim services, legal assistance or other issues directly related to the abusive behavior against the employee or family member.

Employees must exhaust all personal, sick, and vacation time before taking unpaid leave unless the employer determines otherwise. Employees must also provide advance notice of the need for time off unless there is a threat of imminent danger to the employee or the employee’s family member.

Employers cannot take negative actions against employees for unauthorized absences if, within 30 days of the last day of absence, the employee provides documentation that the absence was due to domestic violence.

Importantly, employers covered by this law are required to notify employees about its provisions. A recent Advisory from the Attorney General, the office responsible for enforcement of the law, clarified that this notice may be provided in an employee handbook and by posting a notice in a “conspicuous place” in a manner consistent with the notice posting requirements of the minimum wage law.  

Employees’ Use of Email for Union Organizing

In 2007, the National Labor Relations Board (the “Board”) issued a decision, Register Guard, 351 NLRB 1110 (2007), concluding that employers own their email systems and, therefore, they have the right to restrict employees’ use of such email systems to solely business purposes. Employers have relied on this ruling in adopting policies that prohibit employees’ personal use of the employers’ email systems. As long as the employer enforced this policy in a non-discriminatory manner, employers could use this policy to prohibit employees from using the employer’s email system for union organizing activity.

On December 11, 2014, the Board overruled the Register Guard decision and issued a new ruling in Purple Communications, 361 NLRB No. 126 (2014), holding that employers who give employees access to their email system for their work must also allow those employees to use the system to engage in activity protected by the National Labor Relations Act (the “Act”), which includes communicating with each other about the terms and conditions of their employment and engaging in activity in support of union organizing.

This is a far-reaching decision that affects employers in both unionized and non-unionized settings. Most employers that ban all non-business use of company email will be forced to change their policy unless they can demonstrate “special circumstances” that make the prohibition necessary “to maintain production or discipline.” The Board expressed skepticism that many employers could meet this high standard. Employers who do not modify their email policies to take Purple Communications into consideration will be subject to unfair labor practice charges before the Board.

One positive aspect of the Purple Communications decision is the Board’s recognition that an employer can prohibit personal use of email during working time. Employers can also impose uniform controls within the email system to maintain its efficient and effective functioning, such as prohibiting large attachments and transmission of video content. Like any other rules, however, such restrictions or limits must be enforced in a consistent and nondiscriminatory manner. This means, for example, that an employer cannot prohibit employees from sending large attachments related to union organizing while allowing employees to send large attachments related to other non-business matters, such as for charitable fundraising.

The Purple Communications decision also does not prohibit employers from maintaining the right to monitor email and computer systems for legitimate management reasons, such as ensuring productivity and preventing use of email to harass other employees. Again, however, such efforts must be implemented in a nondiscriminatory manner that is not targeted at employees engaging in activity protected by the Act.

As a result of the Board’s decision in Purple Communications and its far-reaching impact on employers nationwide, we recommend that employers undertake a thorough review of their email and computer use policies to ensure they are consistent with the Board’s new standard. Although the Board’s decision may be appealed (to the U.S. Court of Appeals and potentially the U.S. Supreme Court) and possibly overruled, it currently sets the standard for employees’ use of their employers’ email systems.

If you have any questions, please do not hesitate to contact us.

Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
617-542-6789 phone
617-556-8989 fax

This client alert, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Stoneman, Chandler & Miller LLP and its attorneys. This client alert is intended for general information purposes only and you should consult a Stoneman, Chandler & Miller LLP attorney concerning any specific legal questions you may have.

© 2014 Stoneman, Chandler & Miller LLP