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Labour and employment law : cases, materials and commentary

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Key Legislation

Government agencies, judicial/administrative decisions, study aids & practice materials, current awareness, professional, advocacy, & research organizations, getting help, getting started.

Labor vs. Employment Law?

Labor law and employment law are related but the terms should not be used interchangeably. Labor law in the United States typically focuses on unions and collective bargaining between unions and employers. By contrast, employment law governs the employment relationship between individual employees and their employer. The two areas of law are closely related but are often distinct areas of legal practice.

This guide will focus on the laws that govern collective bargaining and labor relations in both the private and public sectors and research resources you may find useful. A separate research guide on employment law is in the works.

Federal Legislation - Private Sector

• Railway Labor Act May 20, 1926, ch. 347, 44 Stat. 577 (1926); 45 U.S.C. §§151-188 Regulates the labor-management relations of railroads and airlines. Created the National Mediation Board and the National Railroad Adjustment Board.
• Norris-La Guardia Act (a/k/a the Anti-Injunction Bill) The Act of March 23, 1932 (Ch. 90, 47 Stat. 70); 29 U.S.C. §§101-115 Established the right of employees to form unions without employer interference, prevented federal courts from issuing injunctions in nonviolent labor disputes, and made "yellow-dog contracts" (where employees agree to not join a labor union as a condition of employment) unenforceable in federal court.
• National Labor Relations Act (a/k/a Wagner Act) Pub. L. No. 74-198, 49 Stat. 449 (1935); 29 U.S.C. §§151-169 Guaranteed the right of private sector employees to organize, form union, and bargain collectively with their employers. Created the National Labor Relations Board.
• Labor Management Relations Act (a/k/a Taft-Hartley Act) Pub. L. No. 80-101, 61 Stat. 136 (1947); 29 U.S.C. §§141-187 Amended the National Labor Relations Act by adding a list of unfair labor practices (by unions) and other requirements and restrictions imposed mainly on unions.
• Labor-Management Reporting and Disclosure Act (a/k/a Landrum-Griffin Act) Pub. L. No. 86-257, 73 Stat. 519 (1959); 29 U.S.C. §§401-531 Regulates the relationship between a labor organization and its members and imposes certain reporting requirements and fiduciary obligations on labor organizations and their officers. The Department of Labor has exclusive enforcement authority for certain provisions of this statute relating to reporting requirements, trusteeships, and elections. Other provisions of this statute may be enforced by individual union members in federal district court.

Federal Legislation - Public Sector

• Federal Service Labor-Management Relations Statute (a/k/a The Civil Service Reform Act of 1978 or simply, The Statute) Pub.L. No. 95–454, 92 Stat. 1111 (1978); 5 U.S.C. §§7101-7135 Law establishing collective bargaining rights for federal employees. (Title VII of the Civil Service Reform Act of 1978.) Abolished the U.S. Civil Service Commission and created the Office of Personnel Management, the Merit Systems Protection Board, and the Federal Labor Relations Authority.

Federal Legislative History

• U.S. Federal Legislative History Library (HeinOnline) Background on the above federal statutes can be found in the collections made available by HeinOnline. The statutes may be searched by Publication Title, Public Law Number, or by the Popular Name of the statute.

State Legislation - Public Sector

• American Federation of State, County, and Municipal Employees (AFSCME) A collection of links to state public sector collective bargaining laws.

National Labor Relations Board (NLRB)

The National Labor Relations Board (NLRB) is the federal agency charged with the administration and enforcement of the National Labor Relations Act. Consists of two branches: the General Counsel and the National Labor Relations Board. The General Counsel is granted investigative and prosecutorial authority and issues guidance to NLRB staff in the form of memoranda. The 5-person National Labor Relations Board is an adjudicative tribunal that interprets the statute and issues decisions that may be appealed to the US Circuit Courts of Appeal.

• NLRB Website
• Regulations (29 C.F.R. § 100.101-103.100) Found in Title 29 Subtitle B Chapter I of the Code of Federal Regulations.
• NLRB Decisions and Orders The NLRB acts primarily through its decisions and orders, where it either agrees or disagrees with an earlier administrative law judge's ruling on the matter. An NLRB decision may then be appealed directly to the U.S. Circuit Courts of Appeal (as opposed to being appealed at the district court level of the federal courts).
• Reports & Guidance
• NLRB Legal Research Resources & Tools

National Mediation Board (NMB)

The National Mediation Board (NMB) is a federal agency designed to facilitate labor-management relations in the nation's railroad and airline industries. Specifically, the NMB regulates the procedures for evaluating requests by employee groups for union representation, acts as a mediator in disputes regarding the terms and conditions of employment, and interprets contract language it helped finalize. Matters in which the NMB has exclusive jurisdiction are subject to very limited review by federal courts.

• NMB Website
• Regulations (29 C.F.R. § 1200-1299) Found in Title 29 Subtitle B Chapter X of the Code of Federal Regulations.
• NMB Determinations

National Railroad Adjustment Board

The National Railroad Adjustment Board (NRAB) is a standing arbitration board that hears and decides disputes regarding the application and interpretation of collective bargaining agreements. Matters in which the NRAB has exclusive jurisdiction are subject to very limited review by federal courts.

• NRAB Website
• Regulations (29 C.F.R. § 301.1-301.9) Found in Title 29 Subtitle B Chapter III of the Code of Federal Regulations.

Federal Labor Relations Authority

The Federal Labor Relations Authority (FLRA) is an independent federal agency that governs labor relations between the federal government and its employees.

• FLRA Website
• Regulations (5 C.F.R. § 2411.1-2473.1) Found in Title 5 Chapter XIV of the Code of Federal Regulations.
• FLRA Decisions Includes FLRA Decisions, Administrative Law Judge Decisions, Solicitor's Briefs, archival decisions, and legislative history.

Office of Labor-Management Standards

Part of the Department of Labor, the Office of Labor-Management Standards (OLMS) administers and enforces most provisions of the Labor-Management Reporting and Disclosure Act of 1959. Maintains copies of financial and other reports filed by unions, union officers, employers, etc., as well as union constitutions, by-laws, and collective bargaining agreements. Be sure to also check the website of a particular union, as relevant documents may be posted there as well.

• OLMS Website
• Regulations (29 C.F.R. § 400-499) Found in Title 29 Subtitle B Chapters II and IV of the Code of Federal Regulations.
• Agency Determinations/Decisions Includes Election Decisions, Trusteeship Decisions, and other types of decisions/determinations made by the OLMS.
• Criminal and Civil Enforcement Actions
• Online Public Disclosure Room Includes union reports, collective bargaining agreements, and other documentation.

State Labor Agencies

• US Dept of Labor links to all state labor offices
• Association of Labor Relations Agencies (ALRA) Links to U.S. state labor relations and mediation agencies and boards.

Agency Websites

Agency websites generally provide access to more recent agency decisions and determinations, though commercial legal research platforms may be easier to search. (See "Government Agencies," above, for more information and links to relevant agencies.)

Commercial Legal Research Platforms

• Bloomberg Law/BNA's Labor PLUS Bloomberg Law's Labor PLUS component (previously known as "BNA Labor PLUS") allows you to access an NLRB Elections database, Work Stoppages database, Unfair Labor Practice Charges database, Settlement Summaries database, Contract Expirations database, and a Collective Bargaining Agreements database. You can also find a Labor Arbitration Awards tracker and more.

Practice Materials

• NLRB Casehandling Manual Available from NLRB.gov website In 3 Parts (PDF format). Part 1 - Unfair Labor Practice Proceedings; Part 2 - Representation Proceedings; and Part 3 - Compliance Proceedings.
• NLRB Forms Available from NLRB.gov website (PDF format). Includes Unfair Labor Practice (ULP) Case Forms, Representation (R) Case Forms, and others.

• Onlabor.org OnLabor is a blog dev­oted to workers, unions, and their politics, founded by Harvard Law School professors Benjamin Sachs and Jack Goldsmith.

Professional Associations

• ABA Section on Labor and Employment Law The Section's members represent all perspectives of labor and employment law (i.e., management, union, plaintiff, neutral and public) and strives for a balanced discussion of employment issues throughout the world.
• Labor and Employment Relations Association (LERA) The Labor and Employment Relations Association (LERA) is where professionals interested in all aspects of labor and employment relations network to share ideas and learn about new developments, issues, and practices in the field.

Advocacy & Research Groups

• AFL-CIO (American Federation of Labor and Congress of Industrial Organization) Website for the largest federation of unions in the U.S. (consisting of 56 national and international unions).
• The Worker Institute (at Cornell University's ILR School) The Worker Institute engages in research and education on contemporary labor issues, to generate innovative thinking and solutions to problems related to work, economy and society.
• United Association for Labor Education The United Association for Labor Education is an organization of labor educators launched at the start of the century to promote and encourage the development of labor and worker education, to make labor education accessible to all working people, and to promote collective bargaining and the right to organize.
• Labor Research & Action Network The Labor Research and Action Network (LRAN) connects academics and labor practitioners to build workplace and economic power for working people in the US.

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• Last Updated: Sep 12, 2023 10:46 AM
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10 Important Cases of Labour Law

This article presents a comprehensive overview of ten landmark cases that have significantly influenced the evolution of labour laws in india..

The article '10 Important Cases of Labour Law' presents a comprehensive overview of ten landmark cases that have significantly influenced the evolution of labour laws in India.

Labour law covers employment contracts, wages, health and safety, fair treatment of employees, dispute resolution mechanisms and so on and so forth. It provides regulations that govern the relationship between an employee and the employer in a workplace. Labour laws play an important role in the protection of the rights of employees. The cases discussed below aim to cover various aspects of labour laws.

1. Workmen of M/S Firestone Tyre and Rubber Co. of India v. Management [1]

In the instant case, the workers of the Firestone Tyre & Rubber Company were terminated from their employment by the employer as a result of the Domestic Inquiry Finding. Meanwhile, during the pendency of the suit, the amendment to the Industrial Tribunal Act in 1971, brought in Section 11 A which conferred Industrial Tribunal with the Appellate Authority power over domestic inquiries into emerging disputes. The Tribunal gave a decision in favour of the employer and therefore dissatisfied with the decision; the aggrieved workers appealed to the Apex court against the order passed by the tribunal. The Supreme Court considered on the understanding of Section 11A of the Industrial Disputes Act, 1947 and acknowledged the Industrial Disputes Act, 1947 as a beneficial legislative measure drafted for the welfare of employees.

However, the court ruled that since the lawsuit was started before the amendment, the said section would not be applicable in this case. It would only be relevant to cases started after the amendment to the Industrial Dispute Act, 1947.

2. Bandhua Mukti Morcha v. Union of India [2]

A PIL was filed by an organization named Bandhua Mukti Morcha who were actively fighting against the abhorrent practice of bonded labour. The organisation outlined a survey report, conducted in stone quarries in the Faridabad district which revealed numerous workers facing inhuman & intolerable conditions, with a drive of forced labour.

In response to the highlighted facts, the Court recognized guidelines for identifying bonded labourers and directed that state governments must locate, release, and rehabilitate the bonded labourers. The court also declared that a person being a bonded labourer is deprived of liberty, and is a slave with no freedom in choosing employment.

The court also ruled that if it is established that a worker is engaged in forced labour, the presumption is that economic deliberations are involved, and therefore, the worker is a bonded labourer. This presumption can only be refuted by the employer & the state government if they deliver satisfactory evidence.

3. Steel Authority of India Limited v. National Union Waterfront Workers [3]

The Government of West Bengal originally forbade contract labour at specified stockyards in Calcutta by virtue of the Contract Labour (Regulation and Abolition) Act, 1989. The prohibition was temporarily put off through a notification dated August 28, 1989, but it was extended until August 31, 1994. The contracted labourers of a central government enterprise which were primarily involved in manufacturing iron and steel products and engaged in import-export had its branches across India, petitioned the Calcutta High Court to direct the appellants, SAIL, to fascinate them into their consistent establishment due to the West Bengal government's prohibition. The Calcutta High Court, considering the State Government as the appropriate authority dismissed the writ petition. In response to this, the appellants appealed to the Supreme Court, putting in question, the interpretation of "appropriate government" enshrined in Section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970.

The apex court lined that any company working under the authority of the Central Government undertakings, which fails to function due to a lack of conferred power, is considered an industry under the Central Government. Subsequently, the court determined that as per the Contract Labour (Regulation and Abolition) Act, 1970, the appropriate government was the Central Government.

4. People’s Union for Democratic Rights v. Union of India [4]

The PUDR is an organization formed to protect the democratic rights of the Citizens. In the instant case, PUDR appointed three scientists for the inquiry to be conducted in the ASIAD Projects. Based on the investigation report the petitioner addressed a letter to Justice P.N Bhagwati which served as a Public Interest Litigation. The letter highlighted violations of various labour laws and the apex court was requested to look into the issue. The letter was considered as a writ petition by the Supreme Court. Notices were issued to the Union Government, the Delhi Development Authority & the Delhi Administration.

The major allegations highlighted-

The violation of the Equal Remuneration Act, 1976( women workers were not paid properly; misappropriation of money).

The violation of Article 24 of the Constitution of India, the Employment of Children Act, 1938 & 1970 as the children below 14 years were engaged at the construction site by the contractors.

The violations of the Contract Labour (Regulation and Violation) Act of 1970, resulted in the maltreatment of the workers and denial of their various rights.

The apex court in this case found that the stated violations did happen and at a gross means. The court held that there were abuse of labour laws in mass and the State was obliged to take action against such violation ensuring that the fundamental rights of the labourers are safeguarded.

5. Syndicate Bank and Ors v. K. Umesh Nayak [5]

The major issue in the instant case before the Apex Court was whether the workmen were entitled to get paid during the period of strike despite the strike’s nature, legal or illegal.

The Apex Court held that unless a strike contradicts the provisions of the Industrial Disputes Act, 1947, it would be considered legal. Close scrutiny is essential to be applied to the particular factual condition of each claim.

In the instant case, the strike was a result of longstanding disputes between employees and employers. It is the last resort available to the employees for their demands to be fulfilled by the industry. The Industrial Legislation provides for worker’s right to protest and the right of the employer to lockout & provide machinery for peaceful inquiry & clearance of disputes between them. Therefore, the Court ordered that the employees be paid for the strike period.

6. Municipal Corporation of Greater Bombay v. Labour Appellate Tribunal of India [6]

Retrenchment was questioned in this case. The term retrenchment amounts to the termination done by the employer of the employee for reasons other than giving punishment through disciplinary action. It is generally done to relieve them from a job in good faith. In this particular case, the employer sent a show cause notice to the employee after leading an inquiry into misconduct. As a result, the employee was terminated being found guilty and unfit for continued employment with the company. The terminated employee filed a petition seeking restoration and compensation on grounds of termination. The Labour Court ruled in favour of the employee. This decision was challenged by the appellant in Bombay High Court. The High Court decided that this case did not involve retrenchment because the employee’s termination was based on misconduct.

7. M.C. Mehta v. State of Tamil Nadu [7]

In the instant case, Shri MC Mehta invoked Article 32, for violation of fundamental rights of children guaranteed under Article 24. The Court found Sivakasi was the main offender who was employing many child labourers, engaging them in the manufacturing process of matches and fireworks which is qualified as a hazardous industry and held employing children under the age of 14 years in this industry is prohibited.

The Court restated that children below the age of fourteen must not be engaged in any hazardous industry and must ensure all children get free education till the age of 14 years. The Court further also looked at Article 39 (e) which states that the children’s tender age should not be exploited but instead, the opportunities for their healthy growth and development. Therefore, the Court directed the employer Sivakasi must pay a compensation of Rs. 20,000 for violation of the Child Labour (Prohibition and Regulation) Act, 1986.

8. Hindustan Aeronautics Limited v. Workmen [8]

The appellant Hindustan Aeronautics Limited is a company registered under Section 617 of the Companies Act, 1956, belonging to the Central Government. The case is about 1000 workers, working in the company’s repairing unit at Barrackpore, West Bengal were facing issues w.r.t the allowance of the employee’s education, revision of lunch allowances and job permanency. The dispute was then taken by the West Bengal Government under Section 10 (1) to the Industrial Tribunal. The Industrial Tribunal partly awarded some relief to the workers. As a result, the Appellants took their case to the Apex Court and questioned whether the West Bengal government was an appropriate government or not, to resolve the dispute.

The Supreme Court held that the West Bengal government is the appropriate government keeping in mind the company’s subsidiary in West Bengal carried on different business.

Therefore, when there arises a situation of conflict or breakdown, the government of West Bengal has the authority to settle any dispute and keep industrial peace.

9. Bata Shoe Co. Ltd. v. D.N Ganguly [9]

The case is related to a dispute that emerged between Bata Company and the workers. The parties opted for the process of Conciliation to reach a settlement. But the workers initiated a strike post-settlement for which the company declared the strike illegal, stating its contradiction to the earlier settlement. Accordingly, the company conducted an inquiry and terminated the striking workers. In executing the termination dispute, another conciliation proceeding arose, resulting in a signed agreement between both parties. Remarkably, no conciliation officer was present throughout this process.

The main issue before the apex court was whether a settlement executed between the company and the workers could exist in accordance with Section 12 and Section 18 of the Industrial Disputes Act, 1947. The apex court held that the first settlement was binding since it was in accordance with the specified sections however the subsequent settlement remains non-binding since it was contrary to the specified provisions of the Industrial legislation.

10. Bangalore Water Supply v. A. Rajappa & Others [10]

A. Rajappa was an employee of the Bangalore Water Supply and Sewerage Board. A labour dispute was persisting between the employee and the board. A. Rajappa along with several other workmen were fined by the Board for misconduct. A hefty amount was recovered from them which was not reasonable. Therefore A. Rajappa along with other workmen approached the Labour Court. The issue was whether Bangalore Water Supply and Sewerage Board fell within the definition of industry under Section 2(j) of the Industrial Dispute Act, 1947. The Supreme Court of India dismissed the Bangalore Water Supply and Sewerage Board's appeal and held it within the industry definition under the Industrial Dispute Act, 1947.

[1] 1973 SCR (3) 587

[2] AIR 1984 SC 802

[3] Appeal (Civil) 6009-6010 of 2001

[4] 1982 AIR 1473

[5] 1994 SCC (5) 572

[6] AIR 1957 Bom 188

[7] AIR 1997 SC 699

[8] 1975 AIR 1737

[9] 1961 AIR 1158

[10] AIR 1978 SC 548

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As we turn the page on 2020, we offer a brief look back at several significant employment decisions over the past year.

At the federal level, the U.S. Supreme Court issued a landmark decision in  Bostock v. Clayton County , 140 S.Ct. 1731 (2020), recognizing that sexual orientation and gender identity are protected by Title VII.  Click here  to read more on the decision.

In  Our Lady of Guadalupe School v. Morressey-Berru , 140 S.Ct. 2049 (2020), the U.S. Supreme Court also weighed in on the scope of the ministerial exception under federal anti-discrimination laws. At issue before the Court was whether the First Amendment of the U.S. Constitution prohibits courts from intervening in employment disputes (e.g., discrimination claims under the ADA and ADEA) involving teachers at religious schools. The Supreme Court ruled that “ [w]hen a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and teacher threatens the school’s independence in a way that the First Amendment does not allow .”

Interestingly, the scope of the ministerial exception and its application remain open issues that the Massachusetts Supreme Judicial Court (“SJC”) will likely address in 2021. Keep reading for our  Cases to Watch .

Also at the state level, the SJC issued several important employment decisions. In  Hlatky v. Steward Health Care Sys., Inc. , 484 Mass. 566 (2020), the SJC affirmed a $10 million breach of contract damage award in favor of a medical researcher, finding that the damages in question, including the loss of her laboratory, equipment, and cell samples, were not too speculative and constituted the loss of her “life’s work.”

In  Parker v. Enernoc ,  484 Mass. 128 (2020), the SJC clarified that commissions are wages under the Massachusetts Wage Act (and subject to treble damages when unpaid) as soon as the employee completes the work. The SJC also suggested that treble damages may be available where an employer terminates an employee to avoid paying such commissions.  Click here  to read more.

Not all important decisions from 2020 came from the highest courts in the land. Below are a few important 2020 cases that may have flown under the radar, as well as a few to keep an eye on in 2021.

Restrictive Covenants

Ever since Massachusetts enacted statutory non-compete reform in 2018, courts have been casting a critical eye towards post-employment restrictions – even those not expressly covered by the new law (i.e. non-solicitation provisions). As the SJC re-affirmed in  Automile Holdings, LLC v. McGovern,  438 Mass. 797, 808 (2020), a post-employment restriction is “only reasonable, and thus enforceable, if it is (1) necessary to protect a legitimate business interest, (2) reasonably limited in time and space, and (3) consonant with the public interest.”

Below are a few recent examples where Massachusetts courts have refused to enforce over-reaching restrictions.

New Employer’s Solicitation Not a Violation by Former Employee

Townsend Oil Co., Inc. v. Tuccinardi , C.A. No. 04024 (Suffolk Sup. Ct. Jan. 16, 2020)

When Tuccinardi left his employment with Townsend Oil in 2019, he was bound by a post-employment restriction that stated he could not “solicit or attempt to solicit, directly or indirectly” any client or customer of his employer. Two weeks later, he joined Devaney Energy. After Devaney Energy sent out a mailer to potential customers, listing Tuccinardi as the contact-person, Townsend Oil sued for breach of Tuccinardi’s non-solicit obligations.

The court declined to enforce the restrictions. Noting that Tuccinardi was not involved in the mailers’ design or distribution, the court found no evidence that Tuccinardi engaged in prohibited “indirect solicitation.” Further, relying on the dictionary definition of “solicit,” the court held “it is not at all clear that Tuccinardi would violate his non-solicitation obligations by accepting [a call from a former customer] or explaining Devaney’s current offer to new customers.” The court also reiterated a well-established principle that a post-employment restriction is enforceable only “to protect the employer’s good will, not to appropriate the good will of the employee.”

Former Employer May Not Harass and Threaten Enforcement in Bad Faith

Eaton v. Veterans Inc. , 435 F. Supp. 3d 277 (D. Mass. 2020)

When Eaton was hired by Veterans, she signed a two-year non-competition and non-solicitation agreement. When she was later promoted, she was not asked to sign a new agreement. She was unhappy in her position and left for a similar position elsewhere. A few days later, Veterans called her and asked if she had accepted the new position. Eaton alleged that after she confirmed her new position, Veterans made no effort to ask whether she would be using their confidential information or trade upon its goodwill, nor did Veterans “identify any legitimate business reason that would support the enforcement of the non-compete agreement so as to preclude Ms. Eaton from continuing her work at [new employer].”

Instead, Veterans immediately called Eaton’s new employer and threatened to take legal action if it did not sever its relationship with her. Because of this call, Eaton’s new employer fired her. Eaton brought claims against Veterans, including for tortiously interfering with her new employment. The court allowed Eaton’s claims to proceed—and denied Veteran’s motion to dismiss—noting “the reasonable inference that [Veterans] threatened legal action in bad faith and did not seriously consider initiating any judicial proceeding against” Eaton or her new employer.

Fiduciary Duties

The law is clear that officers, directors, and high-level executives owe their employers fiduciary duties and must protect their employers’ interests, including by not actively competing with their employers during their tenure, even without an express covenant so providing. What is less clear, however, is whether fiduciary duties apply to employees farther down the chain of command.

Not All Managers Are in a “Position of Trust and Confidence”

MAP Installed Building Products of Seekonk, LLC v. Ivie , C.A. No. 1807 (Suffolk Sup. Ct. Apr. 17, 2020)

While still employed as a Production Manager at MAP, Ivie decided to start his own company to compete with MAP, and began taking steps to create a new company, including buying equipment, filing paperwork with the state, and soliciting other employees to come work at his new venture. The court held that notwithstanding his title as “manager,” there was scant evidence that Ivie, as a Production Manager, occupied “a position of trust and confidence” necessary to create a fiduciary duty. In the absence of such a duty, the court found that Ivie did not take any steps that were actionable by his former employer.

The court reiterated that there is no bright-line rule around which employees owe fiduciary duties. Any employee planning to compete with his or her employer should be cautious, but as this case illustrates, planning to compete can be done lawfully in certain circumstances.

Layoffs, RIFs, and Reorganizations

It is important to remember that neither a global pandemic nor an economic recession shield an employer’s unlawful employment practices. Rather, as the SJC has noted, that an employer may be required to “reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: ‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’”  Sullivan v. Liberty Mut. Ins. Co. , 444 Mass. 34, 41–42 (2005). One recent decision from the Massachusetts Commission Against Discrimination (“MCAD”) highlights a re-organizing employer’s obligation to take into account reasonable accommodations when transferring a disabled employee.

Right to Reasonable Accommodation in Connection With a Transfer / Reorganization

Cooper v. Raytheon , MCAD No. 11-BEM-01635 (Full Comm’n June 29, 2020)

Cooper, an employee with a traumatic brain injury, performed his job well – with certain reasonable accommodations – for eight years, at which point his business unit was reorganized and he was transferred to a new position where he was not provided accommodations. Thereafter, he was fired for alleged poor performance. After Cooper proved his case before an MCAD Hearing Officer, Raytheon appealed, arguing it had the right to alter or expand a disabled employee’s job duties.

On appeal, the MCAD conceded that, generally, an employer has such a right, “but of course that is not the full story.” As the MCAD pointed out: “An employer does not have the right, however, to terminate an employee with a known disability by transferring them to a different job with new duties without any consideration of reasonable accommodation.”

Cases to Watch in 2021

The scope of the ministerial exception.

Boyd v. Gordon College , 2020-P-0614 (Mass. Supreme Judicial Court)

At issue in this case, currently before the SJC, is the scope of the ministerial exception and whether it applies to all employees of religious institutions or only a subset. Professor DeWeese-Boyd is a social work professor at Gordon College (an evangelical Christian liberal arts college), and was denied a promotion to full professor after her vocal advocacy on behalf of LGBTQ+ individuals and against the college’s anti-LGBTQ+ policies. She asserted discrimination and retaliation claims under Massachusetts law. The College argues that it is protected from application of the state law because it is a religious institution and Professor DeWeese-Boyd is a ministerial employee. This argument relies on the ministerial exception under the First Amendment, which shields religious institutions from liability for employment discrimination against their employees who are “ministers.” Whether Gordon College is a protected institution and whether a social work professor is a “minister” are issues to be decided by the SJC.

Discriminatory Remarks – When They Become Actionable

Robert Collier v. Dallas County Hosp. Dist. d/b/a Parkland Hlth & Hosp. Sys. , 19-10761 (U.S. Supreme Court)

Under Massachusetts law, a single, isolated comment may be actionable as creating a hostile work environment. The issue is not numerosity but, rather, whether the discriminatory comment had such a humiliating, stigmatizing, and intimidating effect on the employee that it interfered with the employee’s ability to fully participate in the workplace. It is clear that some words are so offensive that a single utterance may give rise to violations of the Massachusetts anti-discrimination statute.

The standard under Title VII is less clear. At issue before the U.S. Supreme Court in  Robert Collier v. Dallas County Hosp. , is whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile work environment claim to a jury, and whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

Unfair and Deceptive Practices – M.G.L. c. 93A in the Employment Context

Governo Law Firm v. Kendra Bergeron, et al. , SJC-12948 (Mass. Supreme Judicial Court)

Massachusetts has strong statutory protection against unfair and deceptive business practices,  see  M.G.L. c. 93A (“Chapter 93A”), which provides for both multiple damages and attorney’s fees awards. However, it has long been understood that Chapter 93A protections and remedies do not extend to the employee-employer relationship. A case currently before the SJC is seeking to revisit that understanding.

The case involves a Chapter 93A claim brought by a law firm against its former employees, attorneys who allegedly took electronic data from the firm while employed there. The case raises the issue of whether an employer may assert a viable Chapter 93A claim against an employee who engaged in unfair business practices (a) while acting outside the scope of employment, and (b) in direct competition with the employer.

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