Having survived the holiday shopping season, retailers should begin to prepare for any new employment laws that will go into effect in the coming year (and, of course, should ensure that they are complying with existing laws). This process can be even more challenging for retailers with stores in multiple locations, particularly if those stores are relatively autonomous.
Let us help get you ready for 2018. Here are five important employment trends to watch in Massachusetts:
1. Equality in Pay Laws: Like laws in California and New York, effective July 1, 2018, Massachusetts’ Act to Establish Pay Equity promotes salary transparency, restricts employers from asking candidates about their salary history, and gives legal incentives to companies that conduct salary reviews. This law means employers cannot ban employees from openly discussing salaries with one another, but still gives employers the ability to protect confidential information of employees from their peers. Ultimately, the new law aims to create workplace environments where employees can talk about wage gaps and fight for employers to fix them. The new law also provides standards based on skill, responsibility, and effort to compare the work of two employees in the same role to determine appropriate salaries. Retailers should revise their job application forms to remove inquiries about salary history and should start training managers, particularly those at the store level, about the kinds of salary related questions they can and cannot ask job applicants. Retailers also should consider whether to perform a pay equity audit — which involves analyzing an employer’s pay data to determine whether there are disparities – especially if decisions relating to pay have been made less uniformly and at the store level.
2. Expansion of Reasonable Accommodations for Pregnant Workers and Lactation Laws: Effective April 1, 2018, Massachusetts’ Pregnant Workers Fairness Act requires most Massachusetts employers – including retailers – to provide pregnant women and new mothers with “reasonable accommodations” for their pregnancies and prohibits discrimination against employees on the basis of pregnancy or a condition related to pregnancy, including lactation or the need to express breast milk for a nursing child for an open ended period of time. The new law also requires Massachusetts employers to accommodate pregnant employees in the same manner they are required to accommodate employees with disabilities (e.g., through more frequent or longer paid or unpaid breaks, time off to attend to a pregnancy complication or recover from childbirth with or without pay). Lactation accommodation can be challenging for retailers in small stores, as can scheduling and other related accommodations. Retailers should start planning now how they will address these changes on a store by store basis. The law also contains a notice and disclosure requirement – so retailers should be prepared with new policies and train managers on when they need to provide those policies to employees and how to implement them.
3. Employee Rights and Employer Obligations with Respect to Marijuana Use: Massachusetts legalized marijuana for medical purposes in 2012 and for recreational use in 2016. With the potential for more states to legalize the substance for either or both uses, retailers should consider how this trend will impact workplace protocols and drug screening policies, particularly in light of federal laws that have yet to decriminalize marijuana. Indeed, Massachusetts’ highest court recently held that the lawful use of medical marijuana may not automatically disqualify an applicant or employee from employment and that employers may be required to assess whether an employee or applicant is disabled and can be reasonably accommodated through the use of medical marijuana similar to other employees with disabilities. Retailers ought to review their personnel policies pertaining to drugs in the workplace and be cautious about their approach to pre-employment drug screening. Store managers should know that a drug test positive for THC or chatter about an employee’s medical marijuana card can no longer automatically result in an adverse employment action. Cristina Barbuto vs. Advantage Sales and Marketing, LLC.
4. Restrictive Covenants in Employment Based Contracts: Last year there were as many as 8 pending bills before the Massachusetts Legislature to address laws pertaining to restrictive covenants. These bills covered the following key issues: (i) the requirement that an employee be given advance notice of a mandatory non-compete; (ii) whether consideration (beyond the continuation of employment) will be required when non-competes are entered into after employment has commenced; (iii) the maximum duration of a non-compete; (iv) what power a court has to fix non-competes that are drafted too broadly; and (v) what types of employees should be insulated from non-competes. While retailers are unlikely to impose restrictive covenants on most store-level employees, high level buyers, merchandisers and designers may be appropriate for consideration. It is likely that the Legislature will revisit these issues in 2018 and may pass legislation that protects employees. Therefore, retailers who wish to implement restrictive covenants with certain employees before new laws are passed may want to act now.
5. Anti-Bullying Laws: For the better part of a decade, Massachusetts has been one of the more active states with the re-introduction of the anti-bullying Healthy Workplace Bill, which seeks to make unlawful workplace bullying and harassment without regard to protected class status. Although it is unclear whether the current version of the Bill will pass in 2018, the Bill gained traction in the Commonwealth last year and a handful of other states already have passed similar laws related to workplace abusive conduct. This is an issue that is unlikely to fade away and retailers may want to incorporate a workplace bullying component into any employee training sessions as a proactive measure against the harmful effects of workplace abuse.
While retailers have some lead time before most of these changes go into effect, implementing policies and training store managers takes time. Now is a good time to begin planning for changes in Massachusetts’ employment laws.