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Components, Inc., 548 F.2d 24, 26 (Jst Cir. 1977). If a supervisor's presence at signing can bc deemed a coercive influence over an employee's decision to sign, a pre- printed waiver that an applicant must sign in order to remain an employee has to constitute coercion. Civil. rights have no substance if the party being regulated can unilaterally opt out of the regulatory system by forcing the other party, to give up her rights. Thus, Joul&'s conduct was coercive, in violation of section 4(4A). b. Joule Threatened Sirrunons An employer may not threaten an employee with respect. to that employee's enjoyment of c. 151B rights. G.1,. c. 151B, 5 4(4A). It is "an unlawful practice . . . Fox any person to . . . threaten . . . another person in the exercise or enjoyment of any riyht granted or protected by [c. 15181." - Id. Here, the threat was overt; Shmons was repeatedly informed that she could not continue as an employee unless she signed the arbitration agreement. App. 68, 78. To be actionable, the threat need not constitute physical intimidation. A threat to the employment relationship is sufficient. Bairi v. Sprixfield, - - .- 424 Mass. 758, 765 (1997). A threat violates 5 4(4A) even if the employer does not act on it. ~ Bain, 424 Mass. at 765 & n.4. Thus, Joule's conduct in obtaining the arbitration agreement violated c. 1518. See NLRn v. Reed & Prince Mfg. Co., 118 F.2d 874, 884-885, 887 (1st Cir. 1941) (employer's 39
campaign againsl: union constitut.ed interference and coercion, because i.n its literature, "the threat was only thinly veiled that. thc acceptance of that contract was a sine qua rion of recmpl.oyment") . The line between acceptable hard bargaining and one that is threatening varies, depending upon the rights at issue, and the underlying public policy. Universal Maritime .. . Servi.ce -. Corp., 119 S. Ct. 391, 396 (1998). For example, an employer may tell an employee, "you will work here for $10.00 an hour; take it: or leave it." The resulting contract is enforceable, and not coercivc, because an employer is generally entitled to retain an at-will employee on terms satisfactory to the employer. Hard bargaining involving compensation (beyond minimum wage) is l.egitimate, and is not an actionable threat. - See Wright - v. However, an employer may not tell an employee, "we'll only retain you if you promise to acquiesce to sexual harassment; take it or leave it." - See Beaupre, 50 Mass. App. at 495-496. That contract is the result of an unlawful threat or coercion, and it is precisely the conduct that c. 3.51B, S§ 4(4A) & 4(5) sought to prohibit. - Id. Hard bargaining over c. 151B rights is impermissible. A waiver of important civil rights must not be a condition of: employment. This prhciple is demonstrated in a backward €ashion in the case ol Miller v. Cotter, 448 Mass. 671 (2007), where an arbitration agreement in a 40
- Page 1: COMMONWEALTH OF MASSACHUSETTS SUPRE
- Page 4 and 5: - 11. MASSACHUSETTS PUBLIC POLICY I
- Page 6 and 7: EEOC V. Waffle House, InC., 122 s.
- Page 8 and 9: Wal.ker v. Lakewood, 272 F.3d 1114
- Page 10 and 11: 1. STATEMENT OF ISSUES siyned by th
- Page 12 and 13: STATEMENT OF TAE CASE MELA adopts D
- Page 14 and 15: undermining the many cases pursued
- Page 16 and 17: ARmJmwr The Massachusetts Employmen
- Page 18 and 19: MCAD to enforce the law and rectify
- Page 20 and 21: Labor Comissioner serves simply as
- Page 22 and 23: The Supreme Court held that the arb
- Page 24 and 25: The MUD was established to enforce
- Page 26 and 27: If the private parties agree to res
- Page 28 and 29: case in suppori of the Complainant,
- Page 30 and 31: Stonehill College, 141 Mass. at. 56
- Page 32 and 33: comprehensive scheme to combat disc
- Page 34 and 35: een imposed? Or otherwise assure th
- Page 36 and 37: G. JOULE'S OTHER ARGUMENTS ARE OFF-
- Page 38 and 39: to create a stumbling block. The tr
- Page 40 and 41: Moreover, the MCAD wrote in its ami
- Page 42 and 43: and remedy violations of the statut
- Page 44 and 45: up the substantial right to seek ad
- Page 46 and 47: 2. The Threat To Reject. Simmons' F
- Page 50 and 51: nursing home contract was ruled enf
- Page 52 and 53: When an employer says, "waive your
- Page 54 and 55: Vokovich, 720 F.2d 909, 925 (8th Ci
- Page 56 and 57: coerced"). It is up to state law to
Components, Inc., 548 F.2d 24, 26 (Jst Cir. 1977). If a<br />
supervisor's presence at signing can bc deemed a coercive<br />
influence over an employee's decision to sign, a pre-<br />
printed waiver that an applicant must sign in order to<br />
remain an employee has to constitute coercion. Civil.<br />
rights have no substance if the party being regulated can<br />
unilaterally opt out of the regulatory system by <strong>for</strong>cing<br />
the other party, to give up her rights. Thus, Joul&'s<br />
conduct was coercive, in violation of section 4(4A).<br />
b. Joule Threatened Sirrunons<br />
An employer may not threaten an employee with respect.<br />
to that employee's enjoyment of c. 151B rights. G.1,. c.<br />
151B, 5 4(4A). It is "an unlawful practice . . . Fox any<br />
person to . . . threaten . . . another person in the<br />
exercise or enjoyment of any riyht granted or protected by<br />
[c. 15181." - Id. Here, the threat was overt; Shmons was<br />
repeatedly in<strong>for</strong>med that she could not continue as an<br />
employee unless she signed the arbitration agreement. App.<br />
68, 78.<br />
To be actionable, the threat need not constitute<br />
physical intimidation. A threat to the employment<br />
relationship is sufficient. Bairi v. Sprixfield, - - .- 424 <strong>Mass</strong>.<br />
758, 765 (1997). A threat violates 5 4(4A) even if the<br />
employer does not act on it. ~<br />
Bain, 424 <strong>Mass</strong>. at 765 & n.4.<br />
Thus, Joule's conduct in obtaining the arbitration<br />
agreement violated c. 1518. See NLRn v. Reed & Prince Mfg.<br />
Co., 118 F.2d 874, 884-885, 887 (1st Cir. 1941) (employer's<br />
39
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