Workforce Bulletin

Summer in the Ocean State brings with it familiar novelties: the beach, clam cakes, and the end of the General Assembly’s legislative session. In this Insight, we summarize three employment-related bills that Rhode Island Governor Daniel McKee signed into law late last month, note bills that garnered attention but ultimately did not pass, and explain what employers should do now to remain in compliance.

New Laws

Under the Americans with Disabilities Act (ADA), employers do not have to excuse an employee from performing an essential function of a job as a reasonable accommodation. Several courts have found that a job duty is an essential function where an employee performs it up to twenty percent of the time, particularly where the job description suggests that an employee must be able to perform it.  The Eleventh Circuit has recently gone in a different direction.  In Brown v. Advanced Concept Innovations, Inc., the Eleventh Circuit held that such a function was not essential, and thus, an employer violated Florida’s anti-discrimination law (which courts interpret consistently with the ADA) by failing to excuse an employee from performing it. While Brown may arguably be an outlier, it reinforces the importance of maintaining accurate and up-to-date job descriptions.

Employees who resign from work, sue their employer, and assert “constructive discharge” shoulder a heavy burden to demonstrate that they had no choice but to resign. A recent decision of the Massachusetts Appeals Court, Armato v. Town of Stoneham, shows just how heavy that burden is.

Ready for the “new normal”? Starting January 15, 2022, Boston’s “B-Together” Vaccine Mandate (“the mandate”) will require certain indoor establishments to require proof of COVID-19 vaccination for entry from employees, contractors, and customers.

1. The mandate applies only to indoor portions of certain commercial food services, gym and fitness settings, and entertainment/recreation facilities in Boston

“Indoor food services” means indoor portions of food service establishments offering food and drink including restaurants, bars, and nightclubs. Fully enclosed “outdoor” areas are considered “indoor” under the policy. The mandate does not apply to open-air, outdoor areas, food service establishments offering food and/or drink exclusively for off-premises or outdoor consumption, or to food service establishments providing charitable food services, such as soup kitchens.

Employers in the First Circuit know that unconscionability challenges to employment arbitration agreements are commonplace. In Trainor v. Primary Residential Mortgage, Inc., the U.S. District Court for the District of Rhode Island recently addressed an employee’s arguments that an agreement’s venue clause requiring a Rhode Island employee to arbitrate her claims in Utah and a provision excluding certain claims from the scope of the arbitration agreement rendered the arbitration agreement unconscionable and unenforceable. The court rejected the first argument based ...

The Securities and Exchange Commission’s Whistleblower Program under the Biden administration has picked up where it left off under President Obama, aggressively enforcing Rule 21F-17(a) against employers whose policies may impede employees from communicating with the SEC.  On June 23, 2021, the SEC fined Guggenheim Securities, LLC (“Guggenheim”) for maintaining a policy that it contended impeded potential whistleblowers from communicating with the SEC by requiring employees to obtain permission before reporting securities violations. Even though the SEC was unaware of any instances in which a Guggenheim employee was prevented from reporting a potential securities law violation or in which Guggenheim acted to enforce the policy, the SEC nevertheless found that the company had violated Rule 21F-17(a).

Preparing the terms of employee compensation can be a resource-intensive task requiring input from stakeholders across numerous departments, including human resources, finance, and legal. However, as the Massachusetts Appeals Court’s recent decision in Alfieri v. Merrimack Pharmaceuticals, Inc. demonstrates, investing those resources to complete the task will pay dividends when an employer is faced with a potentially costly claim for unpaid wages.

Background

In May 2014, Merrimack Pharmaceuticals, Inc. sent Michael Alfieri a letter offering him the position of ...

Can an employer be held liable under the False Claims Act (“FCA”) for retaliation if it takes some adverse action against a former employee? Until recently, only one federal appellate court had addressed the issue, holding that the FCA does not cover post-employment retaliation.[1] However, on April 1, 2021, the Sixth Circuit reached the opposite conclusion in United States ex rel. Felten v. William Beaumont Hospital, creating a circuit split and different rules for employers in different jurisdictions.

Background

In 2010, David Felten filed an action on behalf of the United ...