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Labor, Employment and Benefits: Alert - November 10, 2009

On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 authorization bill that expands the Family and Medical Leave Act’s (FMLA) requirements with respect to “qualifying exigency leave” for family of military members and “military caregiver leave.” Specifically, qualifying exigency leave now applies to employees who have family members on active duty military service in a for­eign country, and military caregiver leave applies to family members of veterans, not just active duty service members. Although the law does not specify an effective date, it ap­pears to take effect immediately.

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Government Contracts: Alert - November 12, 2009

On November 30, 2009, the Supreme Court will hear oral argument in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, a qui tam action brought under the False Claims Act (FCA) and appealed from a Fourth Circuit decision. The Court will use the case to resolve a split among the circuits over the scope of the FCA's "public disclosure" bar. A decision affirming the Fourth Circuit could increase qui tam litigation against any organization that does business with, or receives federal money through, federal, state and local governmental entities – and would further expand the reach of the FCA to any state or local program involving the use of federal funds.

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Labor, Employment and Benefits
Alert - July 2, 2008
 
MCAD Begins Undercover Testing
 
 July 2, 2008
 
Christine Z. Freund- Boston
Paul Lannon - Boston

Massachusetts Commission Against Discrimination (MCAD) Chairman Malcolm S. Medley and Commissioner Martin S. Ebel recently announced that the MCAD will soon begin a testing program aimed to uncover hiring discrimination in areas that might not normally come before the commission. This testing program is part of the Equal Employment Opportunity Commission’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was started earlier this year to eliminate race discrimination in the workplace by improving public awareness and litigating discriminatory employment practices. The MCAD has hired Eric Bove to lead the testing program. His work at the Housing Discrimination Project, Inc., involved orchestrating testing programs related to discrimination in housing.

The MCAD’s testing program will begin this summer and run through spring 2009. One component of the testing program is compare-testing, in which two comparable applicants of different age, sex, color or ethnicity are sent to apply for the same position, and an analysis is performed of how they are treated and whether discrimination is present. A second component of the testing program is complaint-testing, in which applicants participate in the employer’s complaint process to determine whether discrimination exists.

The MCAD has used testers in the past to uncover age discrimination in hiring and race discrimination in housing and employment. In 1993, the MCAD conducted one such testing program to look for age discrimination against job applicants. The testing program audited more than 40 businesses in the Boston area by sending undercover investigators to apply for jobs, and then comparing the employer responses to determine if discrimination was taking place. The MCAD brought complaints against seven of the companies and found that at least four had discriminated against applicants.

The MCAD’s testing program is an important reminder that employers should ensure their human resources and hiring personnel are at all times making employment decisions in a nondiscriminatory way, preferably by following a structured process, written procedures and specific criteria. Employers should consult with legal counsel to review their employment policies and hiring and training programs.

For more information, email Paul G. Lannon, Jr. or Christine Z. Freund at paul.lannon@hklaw.com or christine.freund@hklaw.com, respectively, or call toll free, 1.888.688.8500.

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