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Enforceability of Massachusetts’ New Earned Sick Time Act

By on March 2, 2015

By Michael T. Mullaly

On November 4, 2014, Massachusetts voters approved the Earned Sick Time Act (“Act”). The Act is codified at G. L. c. 149, § 148C and becomes effective on July 1, 2015. The application of the Act to unionized employees, however, raises complex legal issues and is already the subject of active litigation in Massachusetts.

The Act applies to all private-sector employers in Massachusetts, including individuals, and requires employers to credit each employee with one hour of earned sick time for every thirty hours worked by such employee. In the case of an employer with eleven or more employees, each employee is entitled to accrue and use up to forty hours of earned sick time — with pay — per calendar year. In the case of an employer with ten or fewer employees, each employee is entitled to accrue and use up to forty hours of earned sick time — without pay — per calendar year. Additionally, the Act provides for the limited “carrying over” of unused earned sick time into the following calendar year.

Under the Act, earned sick time may be used for a broad range of purposes relating to the mental and physical health of, or the effects of domestic abuse upon, the employee and certain of his or her relatives.

The Act provides strong protections against employer retaliation. Moreover, any violation of the Act, even an unintentional one, entitles the aggrieved employee to recover three times his or her actual damages, together with reasonable attorneys’ fees.

The administrative burden and considerable exposure that arise from the Act demand the attention of every employer in Massachusetts, irrespective of its size or sophistication. Indeed, the above description sets forth only a brief summary of the Act, which must be analyzed in its entirety and with careful attention to the circumstances of each employer.

Particularly complex legal questions arise where the Act must be applied to unionized employees. The source of this complexity is federal preemption, a legal term used to describe the situation that results when Congress demands, or the Constitution itself indicates, that only federal law may govern a particular matter. (Ordinarily, there is no prohibition against states enacting legislation addressing the same subject matter as federal law, provided that the state law does not conflict with or undermine the policy aims of the federal law.) Although preemption is, relatively speaking, somewhat rare, labor-management relations is one of the principal areas in which it does appear.

There are three distinct types of federal preemption in the realm of labor law. The Act implicates one type in particular, which is generally called “Section 301 preemption” in reference to its origin in § 301 of the Labor Management Relations Act (“Section 301”). See 28 U.S.C. § 185. Section 301 would appear simply to confer a right to sue in federal court upon a plaintiff alleging the violation of a contract between an employer and a labor union representing an employee (i.e., a collective bargaining agreement). The United States Supreme Court, however, has long read Section 301 to articulate a strong policy interest in favor of having all such contracts interpreted according to a single, nationally uniform body of law (i.e., federal law). As a result, the actual effect of Section 301 is to “preempt” — that is, extinguish — any state-law claim that requires the interpretation of a collective bargaining agreement. Some preempted state-law claims (e.g., for breach of contract) can be construed as claims under Section 301 and then be adjudicated under federal law. In other cases, however, the complaint must be dismissed for failure to state a claim.

Notably, the Act contains many provisions that, in the case of a unionized claimant, appear to require an interpretation of the underlying collective bargaining agreement. For example, in cases where the Act requires an employee to be paid for his or her use of earned sick time, the employee must be “compensated at the same hourly rate as the employee earns from the employee’s employment at the time the employee uses the paid sick time.” The Act also provides that “nothing in [the Act] shall be construed to diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan . . . that provides to employees greater earned sick time rights.” Further, the Act states that an employer may satisfy its obligations by means of “a paid time off, vacation or other paid leave policy” that makes “available an amount of paid time off sufficient to meet the accrual requirements of [the Act],” provided that such policy permits time off “for the same purposes and under the same conditions as earned paid sick time under [the Act].” Determination of the applicable rate of pay, of the comparative generosity of the labor contract and the Act, and of the compliance of any alternate paid time off policy all seem to depend upon an analysis of the collective bargaining agreement applicable to the claimant. For this reason, there is a strong possibility that unionized employees seeking to bring actions under G. L. c. 149, § 50 for violation of the Act will be thwarted by Section 301 preemption.

Section 301 preemption may likewise preclude the Attorney General from pursuing civil sanctions against employers alleged to have violated the Act with respect to unionized employees. In fact, this is among the relief sought in a recent petition for declaratory relief filed by a group of employer associations in the construction industry. See Labor Relations Division of Construction Industries of Massachusetts et al. v. Commonwealth of Massachusetts, No. 1:15-cv-10116 (D. Mass.). The litigation remains in its beginning stages, but may ultimately provide a greater measure of certainty in this area before the Act becomes effective on July 1, 2015.