The Law @ Work

Wait, I Can’t Do That? – Top Five Obscure Legal Protections for Employees

by Erica E. Flores

Technically, Massachusetts is an “at-will” state, which means that employers are free to terminate an employee for any reason or no reason, with or without advance notice.  But there is a critical exception to the “at-will” rule – employers may not terminate an employee for any reason that is forbidden by law.  Managers and human resources professionals are familiar with many of these protections.  Indeed, most of us know that employers may not terminate employees on the basis of race, disability, gender, age, etc.  Most of us also know that employers may not terminate employees in retaliation for exercising protected rights, such as the right to oppose discriminatory practices, the right to request certain types of leave, the right to seek payment of earned wages, the right to file a claim for workers’ compensation and the right to seek reasonable accommodations for disabling conditions.  But state and federal law are filled with many other exceptions to the “at-will” doctrine, some of which even the most experienced employment lawyers don’t even know.

So without further ado, and in the spirit of giving this holiday season, we present to you our completely unscientific Top 5 list of the most obscure illegal reasons for firing (or taking other adverse action against) employees.  Enjoy!

  1. Immigration Status

Since 1986, the Immigration and Nationality Act has made it an “unfair immigration-related employment practice” for an employer with four or more employees to refuse to hire an applicant (or to terminate an existing employee) on the basis of his or her national origin or citizenship status so long as the individual is residing in the United States legally.  The law protects not just citizens, nationals and lawful permanent residents, but also lawful temporary residents and aliens who have been granted asylum or have been admitted into the United States as refugees, provided that they timely pursue naturalization.  The statute also prohibits covered employers from intimidating, threatening, coercing or retaliating against a protected individual for the purpose of interfering with his or her immigration-related employment rights or because the individual has taken any action to enforce those rights, and from engaging in certain practices related to immigration-related documentation.

  1. Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal for employers to discriminate against employees or applicants because of genetic information.  More specifically, the statute prohibits employers from considering genetic information in making employment decisions, restricts employers and other covered entities from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  Genetic information is also protected from discrimination by Massachusetts law.

Many of you may recall that “genetic information” is among the list of protected classes in your non-discrimination policies, but what you may not realize is just how much information is encompassed by that term.  Indeed, “genetic information” broadly covers any information that can be ascertained from an individual’s (or his family members’) genetic tests, any information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history), an individual’s request for, or receipt of, genetic services, his or a family member’s participation in clinical research that includes genetic services, the genetic information of a fetus carried by an individual or her family member and the genetic information of any embryo legally held by the individual or a family member using an assisted reproductive technology.  In fact, employers are not even allowed to acquire genetic information except for certain specific purposes.

You may be wondering how or why an employer would discriminate against an employee on the basis of such information.  Consider an employer who learns that an applicant carries the BRCA gene, making it more likely that she will develop breast cancer, or that her father has been diagnosed with Alzheimer’s disease.  Fearing that the applicant may develop these illnesses, require costly medical care and need time off work, the employer decides not to hire her.  Basing that adverse action on the applicant’s genetic information is illegal under GINA and Massachusetts law.

  1. Associational Discrimination

Both state and federal law prohibit discrimination against employees on the basis of a handicap that afflicts a person with whom the employee associates, such as where the employer fears that the relationship will cause the employer to incur some cost (e.g., increased health care premiums), fears that the employee is or may become disabled as a result of the relationship (e.g., because the disability is communicable) or believes that the relationship will interfere with the employee’s job responsibilities (e.g., because the employee is a caregiver).

But an association with a disabled person is not the only basis for an associational discrimination claim.  Indeed, courts across the country increasingly are recognizing claims of associational discrimination based on other protected statuses, like race and religion, extending the protections of Title VII and their state counterparts to employees who are denied jobs, fired or otherwise discriminated against based on the protected status of their spouse or other family member.  Courts have also recognized associational discrimination claims based on less formal associations, such as an association with an advocacy group devoted to promoting gay rights and even a simple friendship.

  1. Interference with Employee Benefits

The federal law known as ERISA expressly prohibits employers from discriminating against anyone who is a participant or a beneficiary in an employee benefit plan on the basis of their exercise of any right they have under the plan or ERISA, or for the purpose of interfering with their attainment of any such right.  Put more simply, employers may not retaliate against employees for taking or using their benefits under covered retirement and welfare plans, they may not retaliate against employees who exercise statutory rights related to such benefits and they may not interfere with an employee’s efforts to take or use such benefits.

For those of you wondering whether your benefit plans are covered by ERISA, the answer is likely yes – any employee benefit scheme will be deemed an ERISA-covered plan if it is a plan, fund or program that is established or maintained by an employer or an employee organization for the purpose of providing retirement or welfare benefits to participants or their beneficiaries.  A formal written plan is not even required – courts will find a covered plan if a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing and the procedures for receiving benefits, and the employer has at least some minimal ongoing administrative involvement.  Of course, there are statutory exemptions and other legal nuances involved, but by and large, employers should think carefully before taking adverse action against an employee for anything the employee did that is related to an employee benefit.

  1. Discrimination Based on Votes and Political Contributions

Massachusetts law expressly prohibits employers from using the terms and conditions of an employee’s employment to influence or attempt to influence a voter to give or withhold a vote or a political contribution – for example, by threatening to terminate an employee’s employment if he votes against a proposal the employer supports, by reducing his wages for giving donating to a pro-union candidate for public office, or by promising to give him a bigger office if he contributes to a certain political action committee.

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Achieving 100% compliance with every applicable employment law is a nearly impossible task.  The law itself changes constantly – new laws are passed, old laws are repealed, and judges issue new decisions every day that change the way even long-standing laws are interpreted and applied.  Under these circumstances, it is not surprising that employers often focus their compliance efforts on common forms of illegal discrimination, harassment and retaliation, and overlook more obscure laws that can have equally painful consequences.  So do yourself a favor, and spend a few minutes educating yourself every week.  When management asks you if they can prohibit employees from donating to certain political campaigns, you’ll be glad you did.

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