The Wage Act is applicable to commissions ‘when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee.’   In order to be ‘definitely determined,’ a commission must be ‘arithmetically determinable.  In order to be ‘due and payable,’ any contingencies relating to the entitlement to the commission must have occurred.’  Importantly, the Wage Act also, prohibits employers from entering into a ‘special contract’ with an employee to exempt the employee from the protections of the act.

While many lower courts have been asked to determine whether these commission agreements that condition payment of commissions on continued employment violate the special contract provision of the Wage Act, the Supreme Judicial Court (“SJC”) has recently issued some guidance to employers. Terminated employees may.

On February 12, 2020, the SJC issued a ruling in Parker v. EnerNOC, Inc., 484 Mass. 128 (2020).  In this case the court was asked to determine whether the Defendant’s “true-up” commission policy, whereby the salesperson would receive an additional commission once the contract survived past the opt-out date only if he/she was still employed with the company, was legal.  The SJC ruled that “although the plaintiff’s commission never became due and payable pursuant to the true-up policy during her employment, it is, nevertheless a ‘lost wage’ under the act subject to trebling.”  The court made this ruling because, “[a] policy that conditions payment on continued employment cannot relieve an employer from the obligation of paying a commission where the employer terminates its employee in retaliation for complaining about wage violations in the first place.”

If your commission plan is conditioned on continued employment and you have been terminated or are contemplating changing jobs, please contact us for legal advice.

On December 2, 2019, the First Circuit Court of Appeals ruled that au pairs, like any other domestic worker, are protected by the Massachusetts Wage and Hour Laws.  In Capron v. Office of the AG of Mass., 944 F.3d 9, 12-13 (1st Cir. 2019), the Court was asked by Cultural Care, a DOS-approved private placement agency based in Massachusetts, to issue a ruling that the “Au Pair Program” preempts Massachusetts from requiring host families to comply with its wage and hour laws.  The Court, however, declined to do so ruling that while the relevant DOS regulations set a federal regulatory floor on au pair participant wage and hour protections, they do not set a ceiling that limits the wage and hour protections that states may provide to au pair participants.  The Court held that from the text of the DOS regulations applicable to the Au Pair Program, “all one can tell….[is] the Au Pair Program operates parallel to, rather than in place of, state employment laws that concern wages and hours and that protect domestic workers generally, at least with respect to the obligations that such state law wage and hour measures impose on host families to do more than what the FLSA itself requires.”

If you are a participant in the Au Pair Program and you believe that you are not being paid in compliance with the Massachusetts Wage and Hour Laws, please contact us for legal advice. Au pairs areprotected.

au pairs areprotected

Overtime pay for inside sales work. On May 8, 2019, the Massachusetts Supreme Judicial Court (“SJC”) issued guidance for all employees in Massachusetts who are inside salespersons and receive payment on a 100% commission basis.  In Sullivan v. Sleepy’s. LLC., 482 Mass. 227 (2019), the Court was asked to answer 3 questions.

First, the Court was asked if an employee’s commissions and draws may be credited against overtime wages.   The employer argued that they complied with the requirements of the Overtime Statute because they provided their employees with draws and commissions that equaled or exceeded 1 * the minimum wage * the number of hours worked up to 40, plus 1.5 * the minimum wage * the numbers worked in excess of 40 hours.  The SJC, however, held that such retroactive allocation is impermissible and that an additional overtime payment was owed.  They reached this conclusion because, “[i]f employers could undertake such retroactive allocation of payments, they would similarly lack incentive to comply with the wage and overtime statutes in the first place.” Overtime pay for inside sales work.

Second, the Court was asked to determine what the regular rate of pay was for purposes of computing any additional overtime payments.  The Court held that “the overtime rate is…one and one-half times the minimum wage for one hundred percent commission employees.”

Finally, the Court was asked if these same employees would be entitled to a separate payment for Sunday pay.  The Sunday Pay Statute provides that “[a]ny store or shop…which employs more than a total of seven persons, including the proprietor…shall compensate all employees engaged in the work performed on Sunday…at a rate not less than one and one-half times the employee’s regular rate.”  Attributing a similar purpose to the Overtime Statute and the Sunday Pay Statute, the SJC held that a 100% commissioned inside salesperson should receive payment for hours worked on a Sunday at a rate of one and one half times the minimum wage.

If you are inside salesperson who was paid on a 100% commission basis and worked more than 40 hours a week or on Sundays, you may be entitled to additional compensation.   Please contact us for legal advice. Overtime pay for inside sales work.

An interesting question arose recently. Is an employee who settles a case under the Wage Act still entitled to an award of attorney’s fees?

On February 19, 2019,  the Massachusetts Supreme Judicial Court (“SJC”) ruled so, that employees who settle cases brought pursuant to the Massachusetts Wage Act (“Wage Act”) are indeed entitled to recover their attorneys’ fees, unless those are made part of the settlement.

In Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488 (2019), the Plaintiffs filed suit against the Defendant, alleging that the Defendant failed to pay them approximately $28,000 in unpaid wages. On the eve of trial, the parties participated in a mediation that resulted in an agreement to settle the case for $20,500. Importantly, however, the parties reserved the issue of the Plaintiffs’ entitlement to attorneys’ fees for resolution by the Court. The Defendants argued that the Plaintiffs did not prevail, as required by the Wage Act, because they did not obtain judicial approval of the private settlement. The Plaintiffs, however, argued that the Court must apply the “catalyst test,”  whereby a Plaintiff may qualify as a prevailing party under the Wage Act if the “lawsuit is a necessary and important factor in causing the defendant to grant a material portion of the requested relief, a settlement agreement.” Employees who settle cases

The SJC held that the catalyst test applies in the context of determining prevailing parties under the Wage Act, because it promotes the two major purposes of a statutory fee-shifting provision: 1) to act as a powerful disincentive against unlawful conduct; and 2) to provide representation in cases that otherwise would not be financially prudent for an attorney to take on. “The catalyst test thus recognizes that successful litigation may be reflected in settlements as well as court rulings, as settlements are often ‘the products of pressure exerted by [a] lawsuit.’”

As a result, the SJC affirmed that the Plaintiffs were entitled to recover approximately $16,000 in attorneys fees and $1,000 in costs, in addition to the amount they received from their settlement. While attorneys’ fees are often negotiated privately during a settlement, Ferman provides a roadmap for seeking judicial intervention if the amount owed to the attorneys is the only impediment to settlement.

If you’re finding it hard to get paid your wages, let us know. We may be able to help.

It is well established law that the purpose of the Massachusetts Wage Act (“Wage Act”) is to prevent the unreasonable detention of wages by the employers in the Commonwealth.  For this reason, any purported waiver of the rights afforded under the Wage Act are strongly disfavored.  Moreover, to protect against the possibility “that the strong protections afforded by the Wage Act could be unknowingly frittered away under the cover of a general release in an employer-employee termination agreement,” the Supreme Judicial Court held that such an agreement “will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act only if [it] is stated in clear and unmistakable terms.”   “In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving.” Union workers may lose.

On September 5, 2018, the Massachusetts Appeals Court was asked to consider the concept of waiver in the context of collective bargaining agreements (”CBAs”).  In Parris v. Sheriff of Suffolk Cnty., 93 Mass. App. Ct. 864 (2018), the Court was asked to determine whether a provision in the CBAs between the sheriff and the unions representing his employees was a valid request in writing by the employees to be paid in a different manner than that set forth in the Wage Act.  Additionally, the Court was asked to determine whether the CBAs in question effectively waived the employees’ rights under the Wage Act.

The Court held that while the unions had the authority, through collective bargaining, to request that payment of overtime wages be made under a schedule that differs from what is provided in the Wage Act, nonetheless the CBAs at issue were not effective to waive the employees’ rights under the Wage Act.

Pursuant to G. L. c. 150E, unions are the “exclusive representative of all the employees … for the purpose of collective bargaining,”  and “are empowered to act on the employees’ behalf with respect to wages, hours…and any other terms and conditions of employment.’”   Accordingly, the unions possess the right to speak exclusively for all the employees on mandatory subjects of collective bargaining.   Thus, to harmonize the Wage Act with c. 150E, the Court held “that the unions may act on behalf of their members to exercise the employees’ election under the Wage Act to alter the timing of the overtime payments.” Union workers may lose.

Despite the fact that unions have the authority to waive an employee’s rights under the Wage Act, the Court held that the CBAs at issue did not contain the requisite waivers.  This is because the “Commonwealth’s fundamental public policy ‘to provide strong statutory protection for employees and their right to wages, would require, at the minimum, a clear and unmistakable waiver.”   The Court determined that the “CBAs here do not meet this high standard.”

Thus, the Court has made it clear that any attempt on behalf of an employee to skirt the statutory protections of the Wage Act will be subject to strict scrutiny.  If you are an employee who has been told that you waived your rights under the Wage Act, either through a private agreement or a CBA, please contact us for legal advice.

If you’re working in a union, while you may be getting better treatment on the one hand, you may be losing valuable rights on the other.

Check back here for more updates. Or follow us on Twitter: @GordonLawGrp

Gordon Interviewed About Pay Equity Law: Key Insights on Massachusetts’ Equal Pay Act

In a recent interview, Gordon of Gordon Law Group shared valuable insights about the Massachusetts Equal Pay Act and its growing importance in the fight for wage equality. The interview, conducted by a leading legal news outlet, dives into the specifics of the law, its impact on employers and employees, and the continued efforts to close the gender pay gap in Massachusetts. With gender-based wage disparities still prevalent in many industries, Gordon’s expertise provides crucial context for both businesses and workers navigating this evolving area of employment law.

What the Massachusetts Equal Pay Act Means for Employers

During the interview, Gordon discussed the key provisions of the Massachusetts Equal Pay Act, which took effect in 2018. The law prohibits employers from paying employees of different genders different wages for comparable work, with very few exceptions. This includes ensuring that pay equity is maintained for employees in similar roles, even if their job titles differ, or they work at different locations within the same organization.

Gordon explained that while the law provides employees with more protection against gender-based wage disparities, employers must take proactive steps to ensure compliance. “Employers need to conduct regular pay audits, establish transparent pay practices, and make sure that job descriptions are clear and aligned with actual responsibilities,” Gordon emphasized.

“I think it would have led to corruption at the mayor’s office and [the verdict] would have been worse.” Gordon stated.

“I would have given a different closing argument: The fish rots from the head down,” Gordon said. “That’s what I would have started my closing argument with.”

View the article from the Brockton Enterprise here.

Since that verdict, the City commissioned a law firm to write a report suggesting that evidence from witnesses not called by the City would have resulted in a better result for the City, fully exonerating it from the retaliation claim. Gordon disagreed.Since that verdict, the City commissioned a law firm to write a report suggesting that evidence from witnesses not called by the City would have resulted in a better result for the City, fully exonerating it from the retaliation claim. Gordon disagreed.

Since that verdict, the City commissioned a law firm to write a report suggesting that evidence from witnesses not called by the City would have resulted in a better result for the City, fully exonerating it from the retaliation claim. Gordon disagreed.

DOL Changes Rules on Unpaid Internships: What Employers Need to Know

In a move that will have significant implications for employers across the country, the U.S. Department of Labor (DOL) has changed rules on unpaid internships, providing clearer guidelines on when internships must be compensated. These changes aim to protect workers from exploitation while ensuring that internships remain a valuable learning opportunity for students and early-career professionals. As part of this update, the DOL has redefined what constitutes a “bona fide” internship and clarified when an internship must be paid under the Fair Labor Standards Act (FLSA).

What the DOL Changes Mean for Employers

The DOL’s new rules come at a time when unpaid internships have been increasingly scrutinized for potentially violating wage and labor laws. While internships are designed to provide valuable work experience, the DOL’s updated guidelines make it clear that employers cannot take advantage of interns by failing to pay them when their work qualifies as “employment.”

Under the new DOL rules, internships in the private sector are only exempt from payment if they meet a strict set of criteria. The intern must gain educational experience that aligns with their academic program, the internship must be for the benefit of the intern, and the intern cannot be displacing regular employees. Importantly, if the intern is performing work that directly benefits the employer—such as assisting with day-to-day business operations—they must be paid at least the minimum wage.

Key Changes in the DOL’s Internship Guidelines

1. Educational Benefit Must Be Clear: The internship must primarily benefit the intern, not the employer. Interns should be engaged in tasks that provide hands-on learning experiences directly related to their academic goals or career development. Work that merely supports the business operations of the company (like filing, answering phones, or general office tasks) may no longer qualify as unpaid work.
2. No Displacement of Paid Employees: Under the new rules, interns should not replace regular employees. Interns are meant to supplement existing teams, not take on tasks that a paid worker would typically perform. This is a critical distinction that could determine whether an internship program complies with federal wage and labor laws.
3. Clear Understanding of Unpaid Internships: If an employer is offering an unpaid internship, they must ensure that the position meets all of the educational and non-exploitative criteria laid out by the DOL. Internships that don’t meet these standards must be paid in accordance with the minimum wage laws.
4. Internship Duration: The length of an internship has also come under scrutiny. While there are no hard-and-fast rules regarding the duration, internships that extend too long without a clear educational component might raise red flags with the DOL. Employers should ensure that the internship is time-limited and focused on skill-building rather than just cheap labor.

(Listen)

Gordon Interviewed on WBZ NewsRadio About Workplace Sexual Harassment: Key Insights and Legal Advice

In a recent interview on WBZ NewsRadio, Gordon of Gordon Law Group shared his expertise on workplace sexual harassment and the legal rights of employees facing such misconduct. As sexual harassment continues to be a major issue in workplaces across the country, Gordon’s insights provided valuable information on how employees can protect themselves, what employers must do to prevent harassment, and the legal recourse available to victims. His interview comes at a critical time as workplace harassment laws evolve and more people come forward with their stories. Gordon interviewed on wbz

Key Takeaways from Gordon’s Interview on WBZ NewsRadio

During his interview on WBZ, Gordon discussed several important aspects of workplace sexual harassment, including legal protections, employer responsibilities, and the steps employees should take if they believe they’ve been harassed. Here are some of the main points he highlighted:

1. Understanding Workplace Sexual Harassment: Gordon explained that sexual harassment can take many forms, including unwanted advances, inappropriate comments, or hostile work environments. He emphasized that harassment can occur not only between co-workers but also between employees and supervisors or even clients. It’s important for workers to recognize that harassment isn’t limited to physical behavior; it can include verbal or non-verbal actions that create a hostile or intimidating work environment.
2. Employees’ Rights and Legal Protections: Gordon outlined the legal protections available to employees under both federal and state laws, including Title VII of the Civil Rights Act of 1964 and Massachusetts’ own anti-discrimination laws. He stressed that employees have the right to a safe and respectful workplace, and they should not have to tolerate behavior that undermines their dignity or well-being. Gordon interviewed on wbz
3. What to Do If You’re a Victim of Sexual Harassment: One of the most critical pieces of advice Gordon gave during his interview was for employees to document any incidents of harassment and report them to their employer immediately. He recommended using a formal complaint process and, if necessary, seeking legal counsel to protect their rights. Gordon also emphasized that retaliation for reporting harassment is illegal, and employees should not hesitate to take legal action if they face retaliation.
4. Employers’ Legal Obligations: Gordon discussed the role of employers in preventing sexual harassment and addressing claims effectively. Employers are legally required to maintain a work environment that is free from harassment and to take prompt action when complaints are made. He advised that companies should have clear anti-harassment policies in place, provide training to all employees, and ensure that there is a transparent and effective process for reporting and investigating claims.

If you have questions about your rights under New York law, give us a call.

In its latest ruling under the New York City Human Rights Law (NYCHRL), New York’s highest court clarified the standard for plaintiffs to obtain punitive damages. In a landmark ruling, the Court held that “the standard for determining punitive damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a ‘conscious disregard for the rights of others or conduct so reckless as to amount to such disregard.’” This standard is lower than the one set by federal courts under Title VII, simply because the NY Court found that the NY legislature intended a more liberal construction. The case is Chauca v. Abraham.

In its latest ruling under the New York City Human Rights Law (NYCHRL), New York’s highest court clarified the standard for plaintiffs to obtain punitive damages. In a landmark ruling, the Court held that “the standard for determining punitive damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a ‘conscious disregard for the rights of others or conduct so reckless as to amount to such disregard.’” This standard is lower than the one set by federal courts under Title VII, simply because the NY Court found that the NY legislature intended a more liberal construction. The case is Chauca v. Abraham.

In its latest ruling under the New York City Human Rights Law (NYCHRL), New York’s highest court clarified the standard for plaintiffs to obtain punitive damages. In a landmark ruling, the Court held that “the standard for determining punitive damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a ‘conscious disregard for the rights of others or conduct so reckless as to amount to such disregard.’” This standard is lower than the one set by federal courts under Title VII, simply because the NY Court found that the NY legislature intended a more liberal construction. The case is Chauca v. Abraham.

And, of course, if you are asked to take a lie detector test, give us a call before you do.

A widely referenced study from the University of Oregon revealed that without a morally compelling legal foundation, sexual harassment training becomes a hollow compliance exercise rather than a meaningful workplace solution. According to the study, “Without a morally compelling legal core to animate the purpose of the training and provide coherence to the rules, harassment training becomes a hollow exercise in corporate compliance. The experience of attending a standard harassment training eventually starts to resemble a meal at McDonald’s.”

View the original research study:

When harassment training lacks ethical purpose, employees often perceive it as:

• A mandatory corporate requirement
• A generic slideshow without emotional or moral impact
• A fear-based legal warning rather than behavioral guidance
• A repetitive session ignored after completion
• A compliance checkbox NOT culture change

Why standard training fails:

1. No moral or ethical storytelling
2. No legal purpose framing beyond punishment
3. No emphasis on real human impact
4. No leadership involvement or accountability culture
5. No behavioral reinforcement after training
6. No employee-safe reporting mechanism education

What better training SHOULD include:

To improve corporate sexual harassment training effectiveness, companies must shift from boilerplate compliance to values-based education reinforced by:

• Real legal case examples with moral context
• Leadership participation and workplace commitment statements
• Human narratives showing emotional and career impact
• Interactive decision-making scenarios
• Long-term reinforcement beyond yearly sessions
• Clear guidance on protected reporting and retaliation laws

Learn how we support workplace victims:

If you or someone you know is experiencing workplace harassment, visit our legal services page:

If you are facing sexual harassment at work, don’t wait—your rights, career, and well-being matter. Contact legal experts who can help you take action, protect your workplace position, and explore your legal options under state and federal law

If you’re experiencing sexual harassment at work, give us a call.
Our legal team at Gordon LLP is here to listen, guide, and take action when training programs fail workplace victims.

A deep and ongoing Supreme Court class action arbitration divide exists among federal and state courts regarding the legality of mandatory arbitration clauses, workplace class-action waivers, and employee bargaining imbalance. The cases argue whether employers can require workers to sign agreements that both:

• Block access to courtroom litigation
• Prevent employees from filing claims on behalf of others similarly affected

The legal conflict raises concerns about fairness, enforceability, employee rights under collective remedies law, and the boundaries of employer-written arbitration contracts.

Employment law perspectives differ sharply between judicial philosophies. Justices like Ruth Bader Ginsburg acknowledged that many employees sign agreements without real negotiation power, often resembling historical unfair labor contracts such as yellow dog agreements or forced waivers, where refusal could cost them their job opportunities.

Conversely, judges like Chief Justice John Roberts take a stricter contractual interpretation, asking whether arbitration clauses and class waivers should be considered universally illegal or evaluated case-by-case based only on statutory conflict with federal arbitration law.

Why this legal debate matters to the workplace:

The Supreme Court class action arbitration divide could shift:

1. Whether arbitration agreements override group lawsuit rights
2. If employees can seek remedies collectively despite signed waivers
3. How courts treat power imbalance in employment contract enforcement
4. How far employers can go in limiting legal recourse at hiring

What employees should know now:

Courts still evaluate public policy fairness and statutory rights

Most arbitration clauses are not automatically illegal

Class-action waivers are under legal challenge, not fully settled

Signing does not always eliminate all legal options

State employment statutes may conflict with federal arbitration enforcement

This discussion on Dell discrimination settlement Bloomberg Law quote emphasizes a major issue: although many organizations implement workplace trainings and internal complaint procedures, those systems often fail when not supported by transparent enforcement, leadership accountability, and carefully documented HR investigations.

The intern shared serious claims that reflected broader failures in corporate workplace governance, including discrimination based on gender identity, lack of equal promotional opportunity, denial of internal support systems, and retaliation after protected reports. These concerns are increasingly being examined under modern employment law frameworks that protect workers at all levels, including interns.

Legal experts point out that settlement amounts—even when appearing modest for global corporations—reflect not only financial risk but also organizational vulnerability when internal systems fail to meet workplace safety and compliance obligations. Companies are now under pressure to demonstrate that prevention systems actively protect employees and applicants, rather than simply existing as corporate formalities.

Bloomberg Law coverage highlighted the divide many companies face when gender identity protections meet workplace advancement structures and retaliation challenges. The core legal message in these discussions focuses on several key takeaways:

1. Discrimination complaints must be reviewed through independent and structured internal investigations, not only by HR departments responsible for compliance reporting.
2. Employees and interns must be granted equal opportunity advancement pathways regardless of identity, performance barriers tied to protected characteristics may lead to legal exposure.
3. Retaliation after reporting, even indirectly or through career stagnation, can result in liability under employment protection rules.
4. Traditional trainings fail when they only exist for compliance, prevention fails when institutions do not act swiftly and transparently to ensure safety after a report is raised.
5. Companies must implement long-term reinforcement of workplace policies, supported by leadership involvement, documentation trails, ethical purpose, and legal clarity.

If you are unable to locate the Bloomberg Law article, our office can provide a verified legal copy for reference. For more workplace law insights and case support details visit our services page below.

View Bloomberg Article

The updated pregnant worker reasonable accommodation law significantly widens these protections. The law ensures that companies must demonstrate compliance not just on paper, but in daily workplace practices. Employers are still permitted to deny accommodations if they can prove undue hardship, but the burden of proof is increasingly shifting toward documented, transparent, and ethically supported employment decisions rather than automatic denial.

Key protections under the new framework include:

• Employers must provide reasonable pregnancy-related accommodations, including rest breaks when medically or physically justified.
• Employees cannot be retaliated against, demoted, or penalized for requesting or using a pregnancy accommodation.
• Hiring managers may not reject pregnant applicants if they are capable of performing the essential job functions with or without a reasonable accommodation.
• Employers may not force workers onto leave if continued work is possible with adjustments.
• Companies must maintain documented accommodation review logs, HR compliance trails, and legally vetted response procedures to avoid exposure risks.

This law reinforces a simple principle: workers should be able to continue their professional duties without choosing between employment and pregnancy safety.

Government agencies such as the U.S. Equal Employment Opportunity Commission continue to emphasize that pregnancy accommodation denial and retaliation remain top compliance audit targets.

Corporate failure to honor employee accommodation requests can now lead to devastating personal impact, workforce distrust, internal legal escalation, and public accountability damage. Organizations must update internal policies, manager training, accommodation request pathways, retaliation safeguards, and ongoing legal compliance oversight to ensure workplace safety is practiced, not just stated.

Medical marijuana has been legal for use by “qualified patients” in Massachusetts since 2012, and has been equivalent to using any other prescription medication since. For the first time, the Massachusetts courts have ruled that “qualified patients” under the Medical Marijuana Act (which does not provide specific disability discrimination rights itself) do indeed have affirmative workplace civil rights as disabled individuals, protected by the state’s anti-discrimination statute, M.G.L. c.151B.

On July 17, 2017, the SJC issued its decision in Barbuto v. Advantage Sales & Marketing, LLC, No. SJC-12226 (Mass July 17, 2017), reversing the lower courts’ decision to dismiss the plaintiff’s disability discrimination claims.

Under the Medical Marijuana Act, in order to be classified as a “qualified patient,” an individual must be diagnosed by a licensed physician as “having a debilitating medical condition.” The Act goes further, providing that “qualified patients” “shall not be penalized under Massachusetts law in any manner, or denied any right or privilege” for responsibly using medical marijuana (noting that using medical marijuana at work is not within the scope of the Act’s protections).

In Barbuto, the plaintiff was properly using medical marijuana to treat her Crohn’s disease, outside of working hours. However, when the employer discovered her marijuana use, they terminated her employment – skipping the mandatory step of engaging in an “interactive dialogue” to determine whether her use of medical marijuana off hours could be permitted as a “reasonable accommodation,” despite the company’s existing policy against marijuana usage.

A “reasonable accommodation” is a change to a rule, policy or procedure which allows an otherwise qualified individual with a disability to perform the essential functions of their position. The accommodation in question here is whether the plaintiff could be permitted to properly use medical marijuana outside of business hours.

Once on reasonable notice that an employee might need an accommodation, employers in Massachusetts are charged with engaging in an “interactive dialogue” to determine whether the disability in question can be accommodated without imposing an “undue hardship” on the employer (meaning it would cause significant difficulty or expense when considered in light of the company’s operations as a whole).

Applying a balancing test of the plaintiff’s workplace civil rights against the company’s interests, the SJC found that the question of whether Barbuto’s medical marijuana usage could have been reasonably accommodated was not properly dismissed, instead ruling that the plaintiff should have an opportunity to prove her claims using the disability discrimination framework provided by M.G.L. c.151B. In so doing, the SJC has expanded the rights of “qualified patients” under the Medical Marijuana Act.

Are you running into trouble at work for a medical condition? If so, give us a call to discuss your options.

Previous DOJ Position and NLRA Enforcement Debate

For several years, the DOJ advocated in support of the legal interpretation held by the National Labor Relations Board (NLRB). The government argued that class action waivers within employer-drafted arbitration agreements violated employee rights protected under the National Labor Relations Act (NLRA). The NLRA legally shields “concerted activity,” meaning workers are protected when acting together to improve workplace conditions, dispute wage violations, report statutory harm, or jointly pursue litigation based on shared corporate policy abuse.

Updated DOJ View in Supreme Court Filing

That legal stance has now reversed. In a brief submitted to the Supreme Court, the DOJ announced it withdrew past support and adopted the opposite conclusion, stating that class action waivers are not inherently illegal under the NLRA, even if those waiver agreements restrict collective litigation.

This brief was filed in connection with consolidated employment law disputes involving mandatory arbitration enforceability, waiver agreements, misclassification impact, employee bargaining power challenges, retaliation defenses, and statutory coverage issues under U.S. labor law.

Three major cases before the Supreme Court are expected to frame precedent this term:

• Epic Systems Corp. v. Lewis
• NLRB v. Murphy Oil USA
• Ernst & Young LLP v. Morris

The core issue in these cases centers on whether employment agreements that require workers to resolve disputes individually through arbitration can lawfully strip employees of their ability to pursue claims collectively in federal court—even when thousands of workers face identical statutory harm.

Why This Matters for Worker Rights

If the Supreme Court adopts the DOJ’s new conclusion, employers may gain stronger legal support to enforce:

• Mandatory arbitration agreements requiring individual-only dispute filings
• Contract clauses restricting participation in employee collective actions
• Waiver agreements used broadly at onboarding
• Defense strategies minimizing national labor liability for systemic wage or discrimination claims

For workers, this could mean:

• A continued decline in group litigation access under federal labor protections
• More disputes diverted into private arbitration instead of open federal courts
• Increased emphasis on state-based anti-retaliation statutes where applicable
• Difficulty challenging employer patterns collectively without opting out

Gig Economy and Misclassification Consequences

The DOJ’s policy reversal is especially relevant in industries where independent contractor misclassification lawsuits have been widespread—rideshare platforms, delivery fleets, staffing networks, or companies relying on 1099 agreements defended nationally. Courts evaluating misclassification claims often apply an economic realities test similar to the one used by the Department of Labor, but interpretations vary significantly by state and federal district.

Reasonable Accommodation and Retaliation Coverage Remains Unchanged

The DOJ reiterated that the withdrawal does not change employers’ legal responsibilities. Disability discrimination claims, retaliation safeguards, interactive accommodation processes, emotional harm damages, or statutory protections under state anti-discrimination law may still apply depending on jurisdiction, bargaining conditions, and personnel record evidence. Employment Law Resources

Final Note for Workers Seeking Legal Guidance

Employees facing retaliation, misclassification contract interference, or legal restriction behaviors tied to arbitration or class waivers should evaluate their legal reporting options early. If you are unsure whether a waiver agreement impacts your ability to pursue collective remedies, legal consultation can clarify enforceability, retaliation risk, coverage strategy, and alternative statutory protection routes.

The Purpose of the Withdrawn Guidance

The former guidance was introduced during the Obama administration to address persistent judicial inconsistency surrounding worker classification. Courts across the country—sometimes even courts applying the same state or federal precedent—issued conflicting rulings on who qualifies as an employee versus an independent contractor for purpose of wage rights, overtime eligibility, retaliation protection, and personnel accountability.

To resolve those systemic differences, the DOL’s 2016 guidance encouraged courts to use a broad economic realities test, emphasizing practical work conditions over contract title. That test specifically analyzed:

• The level of control a company exercises over the worker
• The worker’s ability to operate as an independent business entity
• Who assumes financial risk for expenses and operational costs
• Whether the work function is central to the company’s core business model
• The worker’s ability to increase profit through managerial decisions rather than simply working more hours

This framework was intended to discourage companies from relying solely on 1099 agreements to classify a workforce as independent contractors when the actual role function was operationally inseparable from the company’s main offering.

DOL Statement on Employer Responsibilities

Despite withdrawing the guidance, the DOL issued a public clarification stating that the withdrawal “does not change the legal responsibilities of employers.” This means companies may still be held liable under preexisting statutory obligations for wage rights, retaliation claims, bargaining power imbalance exploitation, documentation integrity, interactive policy review failures, expense burden disputes, and other protections arising under federal labor law standards.

Expected Judicial Reversion and Workplace Consequences

Legal analysts anticipate many federal and state courts will now revert to earlier precedents and narrower interpretations of the economic realities test. This could reduce the likelihood of large arbitration opt-out collectives and group-wide misclassification lawsuits that depend on broad statutory interpretation for employee status.

This reversion may affect industries such as:

• Rideshare services
• Nationwide delivery fleets
• Franchised business worker models
• Multi-employer worksite environments
• Logistics partners classified as independent operators
• Staffing networks assigning operational risk to workers without managerial autonomy

Who This Matters For

Workers who are currently classified as independent contractors or work in joint employment conditions should understand that courts will now apply existing statutory frameworks without relying on DOL-expanded interpretation. Employers may still be required to engage in classification accuracy debates depending on jurisdiction, retaliation evidence, documentation proof, hiring practice records, policy enforcement step compliance, and the economic realities underpinning the working relationship.

Recent revelations from leaked internal records have provided rare visibility into corporate strategies designed to avoid employee classification. These documents underline a growing national legal battle over employee misclassification, contractor-only labeling, and how far companies will go to justify independent contractor status even when workplace control conditions resemble traditional employment.

Business groups and labor attorneys nationwide have observed similar contract strategies emerging over the past decade, accelerated by widespread gig economy expansion, 1099 staffing model growth, joint employer loophole defense arguments, pipeline-based contractor networks, arbitration-first dispute routing efforts, bargaining imbalance contract enforcement, retaliation-secured reporting silencing, hollow compliance framing, interactive review avoidance, and semantic contract design where nearly every descriptor is acceptable—except employee.

What the Leaks Reveal

The leaked documents show corporations use controlled language strategies to:

• Reduce legal exposure to employee misclassification liability
• Restrict statutory labor protections normally applied to employees
• Eliminate phrases that signal employer duty or workplace bargaining power
• Frame workers as external vendors, partners, consultants, or contractors
• Protect companies from collective legal challenge by individualized dispute terms
• Avoid triggering interactive accommodation discussion duties
• Discourage retaliation-based claims by limiting bargaining transparency

Corporations increasingly enforce contractor definitions through onboarding agreements, compensation acknowledgment forms, severance routing contracts, or arbitration-first invocation, ensuring disputes resolve privately rather than in public court. This form of contract design suppresses classification challenges without technically changing labor law itself—shifting the battlefield from behavior to definition.

Why This Matters Legally

The legal question emerging from such revelations is not only whether the worker was misclassified, but whether internal language engineering is being used to obscure employer control, suppress collective reporting rights, justify retaliation frameworks, bypass interactive dialogues, or impose contractor-only conflict routing despite statutory employee protections.

Mandatory arbitration clauses continue to appear inside contracts that require workers to waive public litigation rights or collective remediation. Courts across the country are deeply divided on enforceability when contracts attempt to hide employment realities under alternate worker labels.

Great insight into how far companies will go for independent contractor justification:

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The case involved the transportation company Oakhurst Dairy and a group of delivery drivers challenging their employer over alleged unpaid overtime. Maine’s overtime exemption law contained a list of tasks that were not eligible for overtime pay, written without a serial comma. The drivers argued that the missing Oxford comma created ambiguity, meaning the exemption should not apply to them.

Why Grammar Became a Legal Issue

Employment contracts, personnel policies, arbitration agreements, 1099 classification acknowledgments, hiring disclosures, overtime exemption clauses, and worker protection statutes depend on precise language. In this instance, the law exempted overtime for workers engaged in:

“canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution”

Because there was no comma before “or distribution,” the court interpreted the phrase as potentially describing one combined task instead of two separate exempt activities. That grammatical ambiguity was enough to side with workers, not employers, and the exemption was ruled too unclear to be enforceable as written.

Impact on Maine Labor Disputes and Worker Pay Rights

This decision matters for several reasons:

• Definition precision influences wage liability — Companies relying on exemptions must draft without ambiguity.
• Statutory worker protections override unclear contract interpretation — When grammar creates doubt, courts may interpret law in favor of employees seeking pay rights.
• Contract drafting accuracy becomes a compliance obligation — Employers cannot use vague lists to remove overtime duty or pay rights loopholes.
• Legal precedent extends beyond Maine — This case is now studied by HR professionals, corporate counsel, contract drafters, and labor attorneys nationwide as a reminder that punctuation can change legal outcomes.

Acknowledgment to Colleagues

Congratulations to attorneys David Webbert and Jeffrey Neil Young whose work contributed to the recognition of how grammar affects labor law fairness and contract clarity. This case has become one of the most widely discussed examples of contract wording impacting employee pay rights.

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