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Pending changes to Massachusetts employment laws

hartnagel-davidIn the current Massachusetts legislative session, a number of bills are pending that have the potential to increase employee protections and, in turn, impose further burdens on employers.

Covering such varied areas as social media privacy, non-competition agreements and workplace bullying, these bills could alter aspects of employment law in the coming years.

The bills’ progress through the legislative process raises the likelihood that some, if not all, the measures, in some form, will become law in the short term.

Social media privacy

Acknowledging the rapid expansion of social media use in recent years, more than 20 states, including elsewhere in New England, have enacted laws that provide protection to prospective and current employees by, among other things, preventing employers from requesting passwords or other access to an individual employee or applicant’s social media account.

For example, in New Hampshire, an employer is barred from requesting or requiring an employee or applicant to disclose social media login information, and from compelling such an individual to add an employer’s agent to a list of contacts, or otherwise reduce privacy settings allowing a third party to view the contents of the social media account. See N.H. Rev. Stat. §275.74.

In late 2015, the Massachusetts Senate passed a bill that closely mirrors its New Hampshire counterpart and would provide similar protections to employees and applicants’ social media accounts.

Section 5 of Senate Bill No. 2063 proposes that an employer would be prohibited from requesting or requiring an employee or applicant to disclose his login information (including user name and password) for any personal social media account or to otherwise provide access through such login information.

In addition, an employer would be barred from compelling an employee or applicant to add the employer or its agent to a list of contacts associated with a personal social media account.

Finally, an employer would be prohibited from asking an employee to reproduce any photographs, videos or information contained in the personal social media account.

The bill further proposes substantial damages if an employer violates those prohibitions. As written, the bill provides for an employee or applicant to obtain relief similar to what is available under the Massachusetts Wage Act. As a result, if an individual successfully alleges that his employer violated his social media privacy, he could recover treble damages and reasonable attorneys’ fees.

The inclusion of a private right of action is one critical distinction of Senate Bill No. 2063, when compared with past attempts to provide social media privacy to Massachusetts employees and applicants.

Certain exceptions, however, are provided for in the bill. For example, the bill would allow an employer to ask for access to an employee’s personal social media accounts, upon receipt of “specific relevant information,” to ensure the employer is complying with applicable state or federal laws.

In addition, an employer would still be allowed to preserve its right to maintain lawful workplace policies governing the use of its electronic equipment and the use of the internet, email or social media.

The House will now need to consider the bill prior to the end of the current legislative session.

Non-competition agreements

In the face of growing pressure to maintain its competitive position, especially in the technology sector, Massachusetts legislators in the last number of years have debated the curtailment or abolishment of non-compete agreements.

Such agreements can prevent an employee from working for his prior employer’s competitor within a particular geographic area and/or a specific time period, which could be up to several years.

While larger, more established companies often advocate for the need of non-competes to protect their intellectual property, other companies — oftentimes smaller startups — have argued that such agreements push younger and highly skilled workers to other states, such as California, that no longer allow for the use of the covenants.

The Massachusetts Senate, in fact, passed an amendment to then-Senate Bill No. 2231, two years ago, in the prior legislative session, that would have severely limited what restrictions could be included in non-competition agreements.

Specifically, it provided a reasonable presumption of validity only to those agreements that barred an employee from working for a competitor within six months of leaving his position. The House took no action, and the amendment was ultimately removed prior to the bill enactment.

Advocates for limiting non-competition agreements are again pursuing such legislation in the way of House Bill No. 1701 and Senate Bill No. 957, which would abolish non-competes entirely.

But while the Legislature has yet to fully consider either bill, House Speaker Robert DeLeo recently pledged that his members would soon begin consideration of a compromise proposal that would, in his words, “strike an appropriate balance” between employers and employees.

DeLeo’s proposal would eliminate the practice for low-wage workers entirely, but allow employers to continue enforcing non-competition agreements for a maximum period of 12 months. In addition, employers would be obligated to advise employees or applicants in advance that they would be asked to sign such an agreement and that they would have the right to seek legal counsel.

While a formal bill has yet to be released detailing DeLeo’s plan, employers should pay careful attention as the debate continues. Advocates on both sides have publicly stated that they are taking a wait-and-see approach, and there is some cautious optimism that the proposal may be limited enough to garner enough support in both legislative chambers for ultimate passage.

Workplace bullying

While Title VII and Massachusetts Chapter 151B, among other federal and state statutes, protect employees from outrageous and harassing conduct that is caused by a discriminatory motive (such as based on one’s race, religion or gender), there does not exist a general law prohibiting bullying in the workplace that is not tied to a protected class.

A culture of profanity, for example, in one’s workplace, while offensive, is not on its face prohibited by Title VII or Chapter 151B. See Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 619-20 (1996).

In an effort to deal with such situations, Massachusetts legislators, since 2005, have introduced the Healthy Workplace Bill, which would provide legal relief for employees who have been harmed, psychologically, physically or economically, by deliberate exposure to abusive work environments.

Support for the bill has grown over the last decade to where the current bill, House Bill No. 1771, has nearly 60 co-sponsors in this legislative session.

The present bill, which would insert a new Chapter 151G into the General Laws, characterizes abusive work environments as ones that subject an employee to “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, but is not limited to repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.”

The bill explicitly provides that a single act will normally not constitute actionable conduct, but that especially severe and egregious conduct may meet the standard.

Furthermore, the bill also considers the exploitation of an employee-victim’s known psychological or physical illness or disability as an additional aggravating factor.

The bill mirrors certain provisions under Chapter 151B’s non-discrimination prohibitions, such as providing for a private right of action and barring retaliation against an employee-victim should that person make a charge or otherwise complain about abusive conduct.

Notably, the bill would provide a much shorter limitations period for a claim to be filed — one year from the last act that constitutes the alleged violations.

Ramifications and practical considerations

The three pending bills have the potential to significantly affect how employers manage and oversee their staffs at different stages of their employment.

First, with respect to social media privacy, employers would need to ensure that their managers are properly trained to not request or otherwise persuade employees to provide any access to social media.

That could prove problematic in workplaces where staff and managers have good relations, and it may be inevitable that they connect with each other through social media. Employers in such cases should preemptively develop strict policies that make clear to all managers what they are and are not permitted to do.

In turn, such policies should seek acknowledgement from employees that any access they provide is voluntary and not due to a request or other pressure imposed upon them by an employer or company agent.

It is entirely unclear whether Speaker DeLeo’s proposal to limit non-competition agreements will garner the requisite support in both chambers, especially in light of the Senate’s prior passage in the last session of a version that, in some ways, was more restrictive.

It is notable that EMC, a large Massachusetts employer and vocal proponent of non-competes, has indicated potential support for the speaker’s proposal.

Employers should monitor the progress of these debates, though it may be best to consider the competitive advantage of preemptively eliminating the use of non-competition agreements both to attract new, highly skilled workers (while maintaining any necessary confidentiality agreements) and seek an edge against entities that impose such covenants.

Lastly, while the proposed workplace bullying statute is probably the least likely of the three bills to pass this session, at least based on legislative activity to date, it has the potential to have the greatest effect on employers should it be enacted.

While the bill is intended to deal with repeated and targeted instances of abusive behavior, it could be used by employees as an improper means to deal with everyday workplace disputes, either through the filing of a frivolous lawsuit or simply threatening to do so.

Unfortunately, the subjectivity that lies at the heart of certain workplace conduct could alter employer-employee dynamics if this, or a similar bill, is ultimately passed.

One way employers should consider handling such scenarios at this time is to consider drafting a policy or plan to address instances of workplace bullying and make clear what behavior will not be tolerated.

David Hartnagel practices at Sheehan, Phinney, Bass & Green in Boston.

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