29th Annual Labor & Employment Law Spring Conference

Issue June 2008 By Jennifer Rosinski

More than 100 people attended the 29th Annual Labor & Employment Law Spring Conference held May 13 at the Colonnade Hotel in Boston. Representatives from the Massachusetts Commission Against Discrimination presented a special lunchtime address.

Expert panels covered the topics of “Evidentiary Issues in the Labor Arbitration Context,” “Implicit Bias and Stereotyping: Theory and Practice,” and a “Survey of Employment Law Developments.”
“This is one of our premiere events of the year, and again it is a wonderful event,” Massachusetts Bar Association President David W. White Jr. told the crowd before introducing representatives from MCAD.

A special lunch presentation featured MCAD Chairman Malcolm S. Medley and Commissioners Martin S. Ebel and Sunila Thomas-George. They provided an overview of the agency’s transformation aimed at increasing efficiency and streamlining investigations.

The MCAD is a constantly evolving organization. We are not trying to identify what has and hasn’t worked,” Medley said.

Among the changes to help increase efficiency is the creation of a uniform system, followed by all MCAD offices throughout the state, and shifting to a paperless office that allows multiple users to access one file at a time, both at the office and at home. Other modifications are re-introducing a testing program, which will begin this summer to seek out discrimination in hiring, increased use of the commissioner-initiated complaint process and offering training to companies.

“We’re trying to cover all our bases in terms of addressing discrimination in the commonwealth,” Medley said. “The MCAD, under this leadership, is not out to get anyone, but we’re certainly out to do our jobs.”

Medley said MCAD is watching with interest several bills pending in the Legislature, including the so-called height and weight and transgender bills.

Commissioner Martin S. Ebel shared some MCAD statistics. Case filings in 2007 went up 10 percent from the year before to 3,500. The top five categories were disability, race, sex, retaliation and age. Disability topped race as the leading cause of action in 2005 and has remained the top category. Among all those filings, 83 percent were related to employment.

Ebel said expectations are that case filings in 2008 will increase by a significant amount as well. Ebel said the number of case filings to date in 2008 is 30 percent higher than the number filed by this time last year.

The testing program mentioned by Medley was elaborated on by Ebel, who said protocols are currently being developed. “We will be employing a number of different methodologies,” he said. Some results should be ready to report in the early winter, with the project wrapping up in May 2009.
Thomas-George provided a detailed explanation of enforcement policies and procedures and the breakdown of MCAD into the divisions of enforcement, legal/hearings and administration. Thomas-George discussed how a 2007 standing order altered the way enforcement is handled. She also mentioned that there is talk of opening a new office in New Bedford.

Attendees of the conference enthusiastically participated in the interactive panels.

“Evidentiary Issues in the Labor Arbitration Context” discussed the basis for obtaining and enforcing arbitral subpoenas, making effective use of information requests and conflicts between orders to provide information and privacy interests. Attendees debated two hypothetical cases involving one fictitious employee accused of stealing a paycheck and employees’ rights to unemployment benefits after termination.

“Implicit Bias and Stereotyping: Theory and Practice” covered the theoretical underpinnings of the notion that implicit bias motivates actions in the workplace, and explored how these insights influence the enforcement of anti-discrimination laws. The attendees were asked to rate the resumes of two fictitious candidates for a summer law clerk position, then discussed the implicit bias associated with particular items on each of the resumes.

“Survey of Employment Law Developments” examined the hottest employment law developments from 2007 and early 2008. Topics included discrimination based on disability, age, race, national origin, religion, gender and sexual orientation; harassment of all types; retaliation; the Family and Medical Leave Act; constitutional claims; common law/business torts including noncompete, nondisclosure and nonsolicitation agreements; wrongful termination; covenant of good faith and fair dealing; interference with advantageous/contractual relations; misrepresentation, deceit and fraud; negligent hire; suspension or retention; defamation and breach of contract; and remedies.

Labor & Employment Section Co-Chair Catherine E. Reuben said the conference was exciting and informative, providing practitioners with a lot of new information and practice tools. “People were getting really into it,” said Reuben, who co-chairs the section with David E. Belfort. “It was a great event.”