Page 28 - BusinessWest January 9, 2023

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Roundup
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lance would tend to interfere with an employee’s rights under the NLRA or “prevent a reasonable employee from engaging” in activity protected by the NLRA.
This could involve employee surveillance of sus- pected organizing activity. The employer will then get the opportunity to explain their legitimate, business- based reasons for the surveillance. At that point, the new proposed framework would require the NLRB to weigh the employer’s business needs for the surveil- lance against the rights afforded to employees under the NLRA. If the NLRB determines that the employ- er’s reasons outweigh the rights of employees, the NLRB will require the employer to disclose all elec- tronic monitoring, the reasons for doing so, and how the employer uses the information it obtains. This crackdown on employee surveillance impacts union- ized and non-unionized workplaces alike.
Update That Handbook for New Protected Characteristics
Massachusetts law prohibits employers from dis- criminating against employees based on a number
of protected characteristics, including but not limited to race, color, sexual orientation, and gender identity. Effective Oct. 24, 2022, Massachusetts added natural and protective hairstyles to the list of protected char- acteristics under the law.
Accordingly, employers need to update their hand- books and other policies to reflect the additions. Your handbook should also include language on many other employment laws, including the state Paid Fam- ily and Medical Leave Act.
Changes to Paid Family and Medical Leave
Speaking of the Massachusetts Paid Family and Medical Leave Act, last month the Department of Family and Medical Leave released updated model notices reflecting new contribution rates effective Jan- uary 1, 2023. If you have not already done so, those new notices need to be distributed to your entire workforce as soon as possible. Employers should also ensure that their payroll providers are planning to implement this change.
The department also updated the mandatory PFML workplace poster, which should be posted in
a location where it can be easily read by your work- force. The poster must be available in English and each language which is the primary language of five or more individuals in your workforce, if these transla- tions are available from the department.
The department is also considering changes to the PFML regulations intended to clarify employer obli- gations to maintain employment-related health-insur- ance benefits while employees are out on leave. Stay tuned in 2023 for developments on these proposed regulations.
Speak Out Act Requires Changes to Employment Agreements
On Dec. 7, 2022, President Biden signed the Speak Out Act into law (see story on page 27). The new law prohibits employers from including non-dis- closure and non-disparagement provisions applicable to sexual-assault and sexual-harassment allegations and claims in agreements executed before the allega-
“Massachusetts law prohibits employers from discriminating against employees based on a number of protected characteristics, including but not limited to race, color, sexual orientation, and gender identity.”
tion or claim arises. It does not impact agreements with those provisions entered into after such a claim arises.
Although it may seem insignificant because it only applies to pre-dispute agreements, employers need to carefully review their confidentiality, employment, and other agreements executed by employees and ensure that the non-disclosure and non-disparagement paragraphs in those agreements do not prohibit the employee from disclosing or discussing sexual-assault or sexual-harassment allegations or claims. Employ- ers would be prudent to include language carving out those claims.
Businesses are encouraged to continue to consult with counsel regarding these changes in labor and employment laws. The team at Skoler Abbott also wishes readers a happy and prosperous new year. BW
Amelia Holstrom and John Gannon are attorneys at Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]; [email protected]
28 JANUARY 9, 2023
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