By Samantha Halem, Catherine Reuben, Tavish Brown, Kathleen Berney, John Graff, Tierra Jenkins, Peter Moser August 19, 2026
On June 9, 2026, the House passed the Faster Labor Contracts Act (H.R.5408), a proposed law that would establish strict timelines and mandatory binding arbitration for reaching first union contracts. Twenty Republicans voted with Democrats, signaling a potential shift in the political landscape for labor relations. The Faster Labor Contract Act (the “Act”) now goes to the Senate, where it will move through committee before potentially being brought to the floor for a vote.
How the Act Would Change Current Law
The Act would impose a dramatic shift in the bargaining process and timeline for newly recognized unions. The objective of the Act is to shorten the timeline between recognition or certification of a union and agreement on a finalized contract. Under current law, there is no set timeline for negotiations. Negotiating a first contract is typically a very lengthy process, as each party works through their priorities and endeavors to reach agreement on a wide range of topics related to wages, benefits, and working conditions. The Act cites to a study that reveals that currently the average collective bargaining agreement takes 465 days to be finalized.[1] The Act states (without citation) that delays in reaching a first agreement primarily benefit employers opposed to labor organizations, and that employers can use those delays to sap labor organization resolve and secure more favorable terms for the employer.
Under the Act, unless the parties agree otherwise, within 10 days of a written request to bargain from a newly recognized or certified union, the parties are legally required to meet and begin bargaining collectively and must make every reasonable effort to conclude and sign a collective bargaining agreement. If, after 90 days, no agreement has been reached, either party may notify the Federal Mediation and Conciliation Service (“FMCS”) and request a mediation.[2] If after the expiration of the 30-day period beginning on the date on which the request for mediation is made, or such additional period as the parties may agree upon, FMCS is not able to bring the parties to agreement through mediation, FMCS will refer the parties to a three-person arbitration panel.[3] A majority of the three-person arbitration panel renders a decision settling the dispute and such decision is binding upon the parties for a period of two years, unless amended during such period by written consent of the parties. The Act is silent regarding who pays for the arbitration and does not provide for any recourse to the parties if the arbitrators impose contract terms that are impractical, unreasonable, or otherwise objectionable.[4]
The Act would also codify into law an employer’s obligation to maintain the status quo during bargaining under the NLRA. Currently, the NLRA does not mandate that employers maintain the status quo during bargaining; however, the Supreme Court held in 1962 that an employer’s failure to do so constitutes an unlawful failure to bargain in good faith. Adding this requirement to the law itself would prevent the Supreme Court from overturning that well-established precedent. See N.L.R.B. v. Katz, 369 U.S. 736, 738–9, 743 (1962) (“We hold that an employer’s unilateral change in conditions of employment under negotiation is…a violation of §8(a) (5)”).
Further, the Act would require the Comptroller General of the United States to submit a report analyzing the average number of dates between when a union is certified or recognized and the date when the parties enter into a collective bargaining agreement. Notably, there is no current reporting requirement to the Board for these dates, and the statistics referred to in the Act are based on only a sample of employers.
What’s Next
It is not clear whether the proposed law is likely to pass in the Senate, where there is currently a Republican majority. A companion bill was introduced in 2025 by a Republican senator, indicating that, as was the case it the House, there is some bipartisan support for its passage. Even if it does pass, however, it could be vetoed by the President, who has already sought to effectively dismantle FMCS.[5]
Were the Act to pass, there are a number of uncertainties and unanswered questions. Is FMCS prepared for the massive influx of cases after being under scrutiny of the Trump Administration? Who would pay for the arbitration? What recourse would the parties have if a well-meaning but misguided arbitration panel imposes terms that are not practicable?
For more questions regarding the Faster Labor Contracts Act, or any aspect of unionization, collective bargaining or other labor law topics, contact a member of the HRW Labor Law Practice Group:
• Kathleen Berney (kberney@hrwlawyers.com / 617-348-4335);
• Tavish Brown (tbrown@hrwlawyers.com / 617-348-4366);
• John Graff (jgraff@hrwlawyers.com / 617-348-4356);
• Jeff Hirsch (jhirsch@hrwlawyers.com / 617-348-4315);
• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);
• Tierra Jenkins (tjenkins@hrwlawyers.com / 617-348-4331);
• Pete Moser (pmoser@hrwlawyers.com / 617-348-4323);
• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316); or
• Any member of the HRW Team
[1]This statistic comes from Bloomberg Law Labor Data. Since the proposed law was written in 2021, the statistics have been updated to an average of 444 days. The analysis looks at 454 first contracts and the dates of each of their NLRB election and subsequent contract ratification from information that Bloomberg has obtained from 2005-2023. https://www.bloomberglaw.com/product/BLLE/page/le_labor_plus
[2]This would be a change from current policy, where both parties need to request mediation. https://www.fmcs.gov/resources/faqs/
[3]Current regulations do not mandate arbitration between parties. 29 C.F.R. §1404.9. See generally, https://www.fmcs.gov/services/arbitration/
[4]Per the Federal Arbitration Act, the parties would presumably have very limited rights of appeal
[5] In March 2025, FMCS was listed as one of the agencies that would be significantly reduced in Executive Order 14238. A federal judge has since ordered the reversal of the reduction in force, but the President has also asked Congress for a dramatic reduction in FMCS’s budget, calling into question whether FMCS could, as a practical matter, effectively perform the mediation and arbitration referral services required of it under the Act. See generally, https:// news.bloomberglaw.com/daily-labor-report/federal-mediation-services-future-dim-despite-workers-return
By Samantha Halem, Charlotte Petilla, Catherine Reuben, Tavish Brown, Alicia Ward August 7, 2026
On August 5, 2026, Governor Maura Healy signed the PROTECT Act (the “Act”). The Act, effective immediately, imposes certain limits on state and local cooperation with federal immigration enforcement. Of relevance to employers is a requirement that, except as required by federal law, no later than 48 hours after receiving notice of an inspection by United States Immigration and Customs Enforcement for I-9 employment eligibility forms or other employment records, the employer must provide written notice to each employee of any such request.
According to the Massachusetts Attorney General’s office, this notice requirement, as well as the other provisions of the Act, are intended to ensure that all Massachusetts residents are protected under the Massachusetts Constitution and Massachusetts law, including the protection of the due process rights of immigrant workers. There will likely be legal challenges to the law, but, for now, it is in effect and binding on Massachusetts employers.
In light of increased ICE enforcement, employers are encouraged to work with counsel to confirm their I-9 compliance and address any errors or omissions before ICE seeks review of employer I-9 records.
For questions or more information, please contact:
• Tavish Brown (tbrown@hrwlawyers.com / 617-348-4366);
• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);
• Charlotte Petilla (cpetilla@hrwlawyers.com / 617-348-4326;
• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316); or
• Alicia Ward (award@hrwlawyers.com / 617-348-4357).
By Kathleen Berney, Allison Eddy, Caroline Galiatsos, Samantha Halem, Charlotte Petilla, Catherine Reuben, Sarah Ruter June 30, 2026
On April 27, a Suffolk Superior Court jury issued what is believed to be the first verdict validating a retaliation claim under the Massachusetts Paid Family and Medical Leave Act (PFMLA). The jury awarded nearly $4.7 million to former Wayfair senior manager Mary Boyle on her claims for retaliation under both the PFMLA and the Mass. Fair Employment Practices Act. Although the PFMLA was enacted in 2018 and benefits became available in 2021, there has been limited judicial interpretation of the Act—including its anti-retaliation provision—and, until now, no PFMLA retaliation claim had proceeded through trial to final jury verdict. While the size of the plaintiff’s verdict in Boyle v. Wayfair, LLC was arguably more about the Fair Employment Practices Act claim than the PFMLA claim, the case is a good reminder to employers about the robust antiretaliation protections afforded to employees under the PFMLA and the unique burden of proof that applies if adverse action is taken against an employee within six months of their return from PFML leave.
Facts Considered by the Jury
Boyle joined Wayfair in 2019 as a senior manager on the service innovation team and had a history of documented performance issues predating her leave. Less than three months into the job, she received a “3 – meeting expectations” rating, with feedback noting she had room for improvement. In August 2019, her manager reassigned team roles, moving Boyle into a program manager position overseeing the company’s virtual desktop initiative—an assignment Boyle viewed as undefined and lacking clear expectations. Her February 2020 review dropped to a “4 – inconsistent performance,” citing her need for guidance in structuring ambiguous projects and tailoring communications. By May 2020, Boyle’s rating returned to a “3,” with noted improvement but areas in which her manager expected continued development. In September 2020, Boyle’s manager expressed concerns about her performance, including mismanaged expectations and unclear project goals, and informed talent strategy leadership that Boyle was no longer a good fit for the team. Boyle was given until November 6, 2020 to show “measured and sustained improvement.” At this point, Boyle complained to management that she was being discriminated against based on her age and sought a transfer, which was denied based on her performance issues. Evidence was presented that, after Boyle reported age discrimination, management actively solicited negative feedback from her subordinates. Additionally, a Wayfair employee testified that around this time, another manager claimed that Boyle was faking health issues to be out on medical leave to avoid being fired.
Boyle took PFMLA and FMLA leave from October 2020 to June 2021 for medical reasons, including depression, exhaustion, and an inability to sleep or function normally. While on leave, she received a January 2021 performance review rating of “5 – rarely meets expectations.” Before returning, she requested two weeks of half-days and written instructions for assignments, and Wayfair granted one week of half-days but denied the request for written guidance. Upon Boyle’s return from leave, she was placed on a 45-day performance improvement plan. At the end of her PIP period, Wayfair determined she had not met the criteria and terminated her employment.
The Unique Burden of Proof in PFMLA Cases
The Massachusetts PFMLA has an unusual provision that states that if an employee suffers an adverse employment action within six months of an employee’s return from PFMLA leave, there is a presumption that the adverse action is in retaliation for taking the leave. Unlike typical retaliation claims, where the employee has the burden of proof, the PFMLA shifts the burden to the employer to prove that it did not retaliate against the employee. To rebut the presumption, an employer must present “clear and convincing” evidence that the action was not retaliatory and was supported by independent justification.
The Jury’s Verdict and Damage Award
Boyle sued for retaliation under both PFMLA and M.G.L. c. 151B—the Massachusetts anti-discrimination statute. Despite the documented performance concerns, the jury found that Wayfair retaliated against Boyle for complaining of age discrimination and that Wayfair had failed to meet the “clear and convincing” standard under the PFMLA. The jury awarded $4 million in punitive damages, $600,000 for emotional distress, and more than $75,000 in back pay. It should be noted that the large punitive damages award resulted from the 151B claim rather than the PFMLA claim, as only judges, not juries, can award punitive damages under the PFMLA.
The Boyle verdict reminds employers that documented performance issues may not be sufficient to establish the heightened clear and convincing evidence standard required to overcome the statutory presumption of retaliation under PFMLA. Moreover, the large punitive damages award resulting from the 151B claim emphasizes that temporal proximity between protected activity and adverse action remains powerful evidence for plaintiffs. Employers should therefore seriously consider the risks and litigation exposure associated with any adverse action taken shortly after an employee engages in protected activity or within the first six months following an employee’s return from PFMLA leave.
Practical Steps for Employers
To avoid litigation and reduce exposure to retaliation claims under the PFMLA and Chapter 151B, employers should:
• Regularly and contemporaneously document employee performance concerns, disciplinary issues, and coaching discussions before any request for protected leave or protected activity occurs;
• Train managers and supervisors on how to identify, document, and communicate performance deficiencies in a consistent and non-retaliatory manner;
• Ensure employee handbooks, leave policies, and PFML procedures are updated to reflect current Massachusetts law and that employees receive all required notices and leave-related documentation;
• Require managers to confer with Human Resources—and, where appropriate, employment counsel— before taking adverse action against employees who recently engaged in protected activity or took protected leave;
• Evaluate whether termination or discipline decisions are supported by objective evidence and are consistent with prior treatment of similarly situated employees; and
• Train managers and HR personnel on the PFMLA’s rebuttable presumption of retaliation and the heightened litigation risks associated with adverse action taken shortly after protected leave.
For questions or more information, please contact:
• Kathleen Berney (kberney@hrwlawyers.com / 617-348-4335);
• Allison Eddy (aeddy@hrwlawyers.com / 617-348-4333);
• Caroline Galiatsos (cgaliatsos@hrwlawyers.com / 617-348-4363);
• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);
• Charlotte Petilla (cpetilla@hrwlawyers.com / 617-348-4326
• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316); or
• Sarah Ruter (sruter@hrwlawyers.com / 781-235-4879).
By Samantha Halem, Laurie Bishop, John Arnold April 23, 2026
As return-to-office expectations continue to evolve, many employers are seeing an increase in requests for remote work as a “reasonable accommodation” of an employee’s disability. Recent FAQs on Federal Sector Telework from the U.S. Equal Employment Opportunity Commission (“EEOC”), although technically only applicable to federal workers, offer insight into how the EEOC may handle failure to accommodate claims involving remote work. The guidance underscores a familiar but critical point: to avoid potential liability, accommodation decisions should be individualized, well-reasoned, and documented.
It is important to remember that the EEOC only enforces federal law. State agencies such as the Massachusetts Commission Against Discrimination (“MCAD”) enforce state laws that may impose broader accommodation obligations than federal law.
Deciding whether to approve a remote workplace accommodation request is a highly fact-specific inquiry, and employers face legal risk if such requests are not properly handled. When considering a request to work remotely as an accommodation, employers should consider the following five questions:
1. Can the employee perform the essential functions of the job remotely?
This is the threshold inquiry. If an employee cannot perform the essential functions of the role from home, remote work is unlikely to be a reasonable accommodation.
This analysis should be grounded in actual job requirements, not just general preferences for in-person work. Employers should be prepared to identify which specific duties require on-site presence and explain why those duties cannot be performed remotely. Broad statements about collaboration, productivity, or workplace culture, without more, may be insufficient if the decision is challenged.
2. What has the employee (or other employees in similar roles) been allowed to do in the past?
Past practice may matter. The EEOC’s guidance acknowledges that it had observed agency employers “exceed[ing] their reasonable accommodation obligations from a desire to be a supportive employer for disabled individuals or in response to the COVID-19 pandemic”, and that such an employer “is not obligated to continue providing them and can discontinue such when they exceed what is legally required….”
That said, if the employee was previously permitted to work remotely, the employer should be prepared to explain why that employee’s on-site presence is now being required. The perception of inconsistent treatment across employees in similar roles is another source of risk. Employers should therefore also evaluate whether accommodations are, to the extent appropriate based on job duties and individual medical needs, consistently handled.
3. Is the request medically necessary due to a disability?
Remote work as an accommodation must be tied to a disability-related limitation. If it is based solely on preference or convenience, it is not required as a reasonable accommodation.
Employers are entitled to request medical documentation supporting the need for remote work and explaining how the accommodation would enable the employee to perform the job.
4. Are we engaging in a true interactive process or jumping to an answer?
The interactive process is not a formality. It is a legal requirement.
Employers should engage in a meaningful, good faith dialogue with the employee to understand the limitations involved and to explore potential accommodations. That process should be documented, including what was requested, what alternatives were considered, and why certain options were determined to be ineffective or infeasible (keeping in mind that “undue hardship” is generally a high bar).
When disputes arise, enforcement agencies and courts often focus on the process as much as the decision itself.
5. Is there an alternative accommodation that would be effective?
Even if full-time remote work is not reasonable, the analysis should not end there.
Employers should consider whether other accommodations could effectively address the employee’s needs, such as a modified schedule, a hybrid arrangement, intermittent leave, or adjustments to the work environment. Demonstrating flexibility and a willingness to explore alternatives can significantly reduce risk, even where requests to work remotely are ultimately denied.
A Final Thought
Remote work is not required in every situation. The key issue is whether the employer’s decision-making process is consistent, well-reasoned, and supported by the facts.
Handled thoughtfully, remote work requests can be managed effectively. Handled poorly or inconsistently, they can become the foundation for a dispute.
Assessing accommodation requests can be tricky business, especially in this era of evolving workplace expectations. If you are working through a request for an accommodation and are not sure if it is reasonable or if it would create an undue hardship, don’t hesitate to reach out to an HRW attorney for guidance.
For questions or more information, please contact:
By Samantha Halem, Catherine Reuben, Alicia Ward, Sarah Ruter, Caroline Galiatsos, Sophie Levine January 22, 2026
There are a few states and localities such as Massachusetts, California, and New York City with employment laws going into effect in February 2026 of which employers with employees in these states should be aware. Let’s dig in:
Massachusetts:
California:
New York City:
For questions or more information, please contact:
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