Section Review

Comments from the Labor and Employment Section Chairman

Employment disputes cost too much and take too long to resolve. It doesn’t have to be that way, and the bar should take immediate steps to effect real change. The place to begin is at the Massachusetts Commission Against Discrimination (MCAD), where all discrimination cases begin and where most are ultimately resolved, because discrimination claims are the predominant employment disputes today. Contrary to its original mission to be an informal administrative agency where claims of discrimination could be quickly and inexpensively resolved, the MCAD today is in most respects just another court-like forum in which to litigate disputes. Lawyer-driven processes and rules have bogged down the agency, rendering most experiences there virtually indistinguishable from a trip to court. This makes little sense, especially given that, unlike many agencies (e.g., NLRB, state Labor Relations Commission) that have exclusive jurisdiction to hear disputes arising under their statutes, the MCAD shares subject matter jurisdiction with the courts. It cannot be that the drafters of Chapter 151B intended to allow cases to be heard in either place, and also to make the choice lack any meaningful distinction. In fact, the MCAD was intended to be quite different, on the model of the other state and federal labor/employment agencies. Fundamentally, the MCAD needs to shed its compulsion to be all things to all people, according claims frivolous on their face the same process as allegations of egregious discrimination. That starts with a significantly beefed-up intake procedure. Garbage charges should be quickly identified and dismissed, without the employer having to spend a penny to defend them. At the other extreme, cases raising significant claims should be quickly investigated, injunctions should be sought if necessary, and speedy trials should be held. Cases between these poles can be treated with a graduated approach. These kinds of changes should draw the support of both the plaintiff’s and the defense bars. Instinctively a plaintiff’s lawyer will resist the summary dismissal of charges. But why should this be? The vast majority of MCAD charges do not survive the probable-cause hurdle, let alone win at public hearing or trial. Thus, these cases produce for the plaintiff little more than added cost, unfulfilled emotional investment and time that could have been spent productively, while for the contingent-fee attorney, no income to justify the opportunity costs (and likely other, unrecovered costs). It is true that not all LOPC’d cases are frivolous on their face and can be immediately dumped. But those that are, should be. (Like my OSHA retaliation case many years ago in which the MCAD insisted on a position letter, because that is the process.) There will be protests that even some of these cases might have some grain of merit in them. But even if this is so, if one in a million cases that appears frivolous turns up something real when investigated to the bone, the resources of this agency should not be expended finding out. Because, among other reasons, this takes away resources from making a real impact where it matters. It must also be remembered that every one of those dismissed cases can be filed in court and receive a de novo review. In fact, a quick dismissal ensures that the three-year time limit is met and allows the parties’ resources to be directed to the court where it will ultimately be heard. By the same token, employers should not complain about speedy trials for important and serious cases. If there is to be back-pay exposure, you might as well know early and mitigate the liability. Also, the common phenomena of lost memories and long-departed witnesses would be lessened. In any case, delay for delay’s sake is not a public policy argument. Of course, the tough decisions and most decisions will come between the egregious and the frivolous, and the MCAD needs to be ambitious, not overly cautious, in its approach to these cases. The high LOPC numbers, confirmed by my own experience defending hundreds of MCAD charges, suggests that most cases can be resolved with a short, simple, focused investigation. That means a process that looks much more like the current pro se unit than the AAU. Indeed, the pro se process can be the model for all cases, whether or not lawyers are involved, at least as the default position. It includes a charge, a position letter response, a quick hearing where the complainant can have her “day in court,” and follow-up inquiries as necessary from the investigator. There may be cases that call for more than this pre-PC, but most do not, and those that do not, should not. The current AAU structure — depositions, written discovery, detailed Rule 56-like submissions — should be dismantled. Discovery prior to probable cause should be an option only in a limited number of cases; only when a party demonstrates it is necessary, and only to the extent a party demonstrates is necessary. (Reciprocal discovery should then be available to the other party.) The mandatory end-of-discovery memorandum of fact and law is also unnecessary, even where there has been discovery. My experience with AAU cases is that the discovery limits imposed by the MCAD —15 interrogatories, 15 document requests and six hours of deposition — are overkill on virtually every case. The original intention of the regulation to limit written discovery to 15 requests and/or interrogatories is long forgotten, and the problem is exacerbated by the AAU’s interpretation that each named respondent (usually a string of supervisors and managers) warrants multiplication of these “limits.” When this entire discovery is completed, it is heaped on an investigator’s desk as part of the fact and law submission, further slowing down the process. Now is a good time to act. State budget cuts have increased investigator caseloads to an average of about 400. Anyone who handles MCAD cases knows that dealing competently and diligently with this number of cases is an impossible burden. (For plaintiff and defense lawyers out there, ponder for a moment being responsible for 400 open cases on your desk.) Thus, immediate action to improve case processing at the agency is not an option; it must be done. And it will be done. The MCAD is currently beginning the process of re-writing its procedural regulations. The only question is whether there will be real change or just tinkering. I hope it is meaningful reform. I know that the current leadership at the agency, both the commissioners and the general counsel, is up to the task. It’s time to think big.
©2017 Massachusetts Bar Association