Logo Bennett & Belfort P.C.
The B&B Docket Blog
Developments in the Dynamic World
of Business and Employment Law

COURT FINDS THAT AN ELECTRONICALLY SIGNED AGREEMENT PREFECTS A MECHANIC’S LIEN

Posted on: August 29th, 2014 by admin

ABC In a case that modernizes the Massachusetts mechanics’ lien statute, M.G.L. c. 254 et seq., Bennett & Belfort Attorney Eric LeBlanc successfully argued that electronic signatures satisfy the mechanics’ lien statute’s “written contract” requirement.  In the recent Massachusetts Superior Court decision Clean Properties, Inc. v. Riselli, the Middlesex Superior Court decided that “[n]othing in the mechanics’ lien statute requires a physical signature…on a piece of paper rather than an acceptance of written contract terms by an electronic signature that is conveyed by email.” (C.A. No. 2014-04742) (Salinger, J.)

In Clean Properties, it is alleged that Defendant, Carol Riselli, was provided with a written proposed contract by Clean Properties, Inc., an environmental services company, to perform environmental cleanup work on an emergency basis at Riselli’s property.  Riselli apparently responded via email, stating that she agreed to the terms of the contract.  After Clean Properties performed substantial work on the property, it is claimed Riselli failed to make a single payment.  Clean Properties placed a mechanics’ lien on Riselli’s property, and initiated litigation to recover payment for its services.  Riselli attempted to dissolve the mechanics’ lien, claiming that because there was no signed, written agreement, the “written contract” requirement of the mechanics’ lien statute was not satisfied. The Court disagreed.

Defendant unsuccessfully argued that “no written contract was ever formed because neither party affixed a handwritten signature to a paper form of the contract.”  However, the Court appears to have been persuaded by the plain meaning of the Massachusetts Uniform Electronic Transactions Act (“MUETA”), M.G.L. 110G et seq., which provides that an electronic record or acceptance by email results in a binding contract, and satisfies the statutory requirements of a “written contract.”   The MUETA defines an electronic record as, “a record created, generated, sent, communicated, received or stored by electronic means,” and does not require a physical signature for it to be enforced.

Superior Court Judge Kenneth W. Salinger agreed and found on these facts that the email Riselli sent to Clean Properties, Inc., which contained her name in the signature block, and expressed her assent to be bound by the deal, formed a binding electronic record under the Uniform Electronic Transactions Act.

The Clean Properties, Inc. v. Riselli decision is further evidence that the law is evolving to meet the pervasive use of new technology in business and society at large.  In light of today’s wide use of electronic communications, this precedent adds clarity that both businesses and individuals can rely upon.  The decision underscores that even in our rapidly evolving world of tweets, face book and electronic mail, the old adage coined by William Penn still holds true: “Rarely promise, but, if lawful, constantly perform.”

Release Bars Wage Claim Despite Lack of Specific Reference to Massachusetts Wage Act

Posted on: August 11th, 2014 by admin

District-MassachusettsUntil recently, it was thought that an employee’s waiver of rights to sue for past due compensation or wages as reflected in a signed release of claims had to be spelled out with precision.  Since the Supreme Judicial Court’s 2012 decision in Crocker v. Townsend, in which the Court held that an employee’s release did not prevent him from filing a later claim under the Wage Act, many employers have included a specific reference to “the Massachusetts Wage Act” in their release provisions.  However, a recent U.S. District Court decision – MacLean v. TD Bank, N.A. - states that a specific reference to the Wage Act is not required, and a release bars any claim for unpaid wages as long as the language is clear that the employee is waiving his or her right to be paid wages.

The Plaintiff in MacLean signed a severance agreement that involved the payment of approximately $500,000 in exchange for a release of all claims.  The release provision included a waiver of claims “related to the payment of wages, bonuses, incentives, and other compensation” and rights relating to “compensation agreements.” However, the release did not specifically reference the Wage Act.  Later, the Plaintiff filed suit, claiming that the Defendant failed to compensate him for 23 days of PTO time he had accrued.

Despite the Plaintiff’s argument that the release he signed was insufficient based upon the Crocker decision because there was no specific citation to the Wage Act, the U.S. District Court disagreed and held that the Crocker decision did not require a specific citation to the Wage Act.  Instead, the Court opined that in order to validly release all claims under the Wage Act, a release only required a reference to the “rights and claims” under the Wage Act.  Accordingly, the Court held that the release was sufficient to waive the Plaintiff’s later claims for non-payment of PTO time because it included “plainly worded and understandable references to the rights Plaintiff was giving up under the Wage Act”.

The MacLean decision is instructive, as many employers responded to the Crocker decision by including specific citations to the Wage Act in their releases.  The U.S. District Court has now clarified that those specific citations are not necessary.

money5001

PREGNANT EMPLOYEES ARE PROTECTED, FOR NOW

Posted on: July 16th, 2014 by admin

image001 (1) In our continuing series on pregnancy and the workplace, we highlight new guidelines issued by the Equal Employment Opportunity Commission (EEOC) relative to the rights of pregnant women at work.  In a close 3-2 partisan vote of Commissioners earlier this week, the EEOC issued new enforcement guidance clarifying its interpretation of the Pregnancy Discrimination Act (PDA) with an analysis that parallels protections afforded under the Americans with Disabilities Act and its amendments (ADA / ADAAA).  At its core, the PDA prohibits discrimination based on pregnancy and establishes workplace protections for pregnant workers.  After several decades of relative silence on the issue, the Agency indicated that pregnant employees are protected against discrimination for their current pregnancies, including medical conditions, as well as past and potential pregnancies.  Pregnant workers must be accommodated with reasonable workplace adjustments – whether their pregnancies rise to the level of a disabling condition or not.  Indeed, the guidance makes clear that even a healthy pregnancy entitles workers to protections, including work place adjustments (e.g. leave to see doctors, maternity leave, etc.) also known as reasonable accommodations, and prohibits adverse action, including termination, due to pregnancy.  Lactation, an issue we recently explored in our Blog “Got Milk Break? Working Mothers Breast Milk Pumping Rights Expand,” and by extension expressing breast milk, is now explicitly considered a medical condition giving rise to protections on the job.

It should come as little surprise that the EEOC’s guidance, which is not black letter ‘law’, will not be the last word on this issue.  Indeed, the US Supreme Court has agreed to decide the case of Young v. United Parcel Service (UPS) based on an appeal by Ms. Young from the Fourth Circuit, which found UPS’s policy pregnancy-neutral and therefore not applied so as to deprive pregnant employees of any rights.  Ms. Young was a pregnant UPS delivery driver who was denied light duty work and fired by UPS.  Ms. Young claims that the company’s conduct violated the PDA when UPS required her to go on unpaid maternity leave, rather than offer her a position that was less strenuous as her doctors had recommended.  While the Pregnancy Discrimination Act does not expressly mandate that employers make accommodations for pregnant women, the EEOC and Obama Administration, through their newly published guidance, are pressing for such an interpretation as a natural extension of their mandate to enforce protections based on biases associated with both gender and disability.

Here are some other highlights of the EEOC guidelines:

  • Pregnancy-related conditions can constitute disabilities under the amended Americans with Disabilities Act, thus triggering an employer’s obligation to provide reasonable accommodations.
  • Lactation is a pregnancy-related medical condition.
  • Employers may not refuse light duty to pregnant workers on the ground that their light duty policies are limited to workers injured on the job.
  • Parental leave for newborns or newly adopted child care and bonding has to be provided to fathers as well as mothers.

The EEOC has provided additional information in a Q&A and a fact sheet.  It remains to be seen whether the US Supreme Court affirms this expansive Administrative interpretation of the PDA as it relates to our most vulnerable workers.  As always, feel free to contact us for recent developments in this area of employment law……and stay tuned for future developments!

eeoc2

Got Milk Break? Working Mothers Breast Milk Pumping Rights Expand

Posted on: July 14th, 2014 by admin

Breastfeeding logoSince the passage of the 2010 Patient Protection and Affordable Care Act (“ACA”), (Wage and Hour Division) often referred to as ”Obamacare,” working moms enjoy enhanced workplace rights to pump or express breast milk, unrecognized by the law just a generation ago.  This piece provides a general overview of these new developments; however, if you have any specific question as to the application of these regulations, please consult an employment attorney.

For many nursing mothers, returning to work during that first year of their new child’s life can be a stressful and uncertain time.  The American Academy of Pediatrics (AAP) “recommends that babies be exclusively breastfed for about the first 6 months of life.” (See Breastfeeding Initiatives)  For new parents, workplace leave protections, which are unpaid times off, are limited.  For example, the Massachusetts Medical Leave Act (MMLA) provides eight weeks of unpaid leave relating to the birth or adoption of a minor child, while the federal Family Medical Leave Act (FMLA) is restricted to twelve weeks of unpaid leave for larger employers ( > 50 employees only).  Consequently, practical considerations dictate that most mothers must return to work well before they have finished breast feeding their newborns.

Oddly, The United States Department of Labor (DOL) (Wage and Hour Division) enforces the “Break Time for Nursing Mothers” law because of its jurisdiction over the federal Fair Labor Standards Act (FLSA). The provision applies to nonexempt (generally hourly paid) employees covered by the FLSA.  Many U.S. employers are now required to provide qualifying employees a “reasonable break time” as often as an employee has a need to “express breast milk for her nursing child” for one full year after the child’s birth.  An employer is not required to pay for such “reasonable break time;” but if paid breaks are provided to other employees, then mothers who take breaks to pump breast milk may well also be entitled to compensation for that time.

In addition to providing covered employees reasonable time to pump breast milk, employers must also afford them “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” for purposes of pumping breast milk.  These new workplace rules assure most working mothers the time, privacy, and protection needed to return to their professional lives while still tending to the recommended nutritional needs of their developing children.

Employers with fewer than 50 employees are potentially exempted from the federal breast pumping rules, but only if they can overcome the burden of proof to show that compliance with the law would impose an “undue hardship.”  This burden is high.  Employer applicants must show that providing these accommodations would cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  Because a clean, private location may be established in most industries without significant cost, securing an undue hardship exemption would likely be quite challenging.  Furthermore, due to the changing nature of most businesses, each application for such an accommodation would require an individualized assessment and particularized exemption application.  Additionally, there are other exceptions to the coverage of this law.  For example, employees who are generally exempted from section 7 of the Fair Labor Standards Act are arguably not covered by the law at all.  This will no doubt be challenged in Court.

Violations of the ACA are to be reported to the Wage & Hour Division of the U.S. Department of Labor.  If an employer discriminates against an employee under the ACA or retaliates against the employee for asserting her rights, filing a complaint under the ACA or cooperating with a resulting investigation, she may institute an administrative claim or civil lawsuit.  The available statutory remedies are still being hotly debated but have been found to include those remedies available under the FLSA:  lost wages, attorney’s fees and costs (See Salz v. Casey’s Marketing Co. N.D. Iowa, No. 11-cv-3055, 7/19/12).

In a non-ACA decision, The Massachusetts Supreme Judicial Court weighed in on a similar issue on the state level in the context of a physician-mother taking her licensing exam. In Currier v. National Board of Medical Examiners, 462 Mass. 1 (2012) the SJC held that pregnancy, along with lactating and breast feeding, are inextricably linked to the female sex (gender).  As such, the Court found that discrimination protections afforded in the gender context are applicable to mothers that breastfeed or pump.  Therefore, in addition to the new ACA protections, Massachusetts employers (and in some cases, responsible supervisors) who are found to discriminate against women in the workplace by improperly restricting their time to privately express milk in a sanitary environment face potential liability under Massachusetts’s Equal Rights Act, M.G.L. Chapter 93, section 102, and/or Massachusetts’s Anti Discrimination Statute, M.G.L. Chapter 151B, and can be held responsible for back pay, front pay, lost benefits, emotional distress, attorney fees and costs, and even in some cases punitive (punishment) damages.

Not only are there substantive restrictions to the applicability of the ACA and state laws, but strict and fairly short deadlines apply to file an administrative complaint or civil lawsuit.  These statutes of limitations must be carefully adhered to in order to preserve or pursue a claim under governing state law or the ACA, so persons interested in prosecuting such claims should speak with an employment law attorney and act immediately.

The social trend in society that we protect our nursing mothers is now codified and has found its way into our legal framework.  Time will tell how the Courts interpret these rules but it is safe to say that the rights and protections of new mothers to express milk in the workplace have greatly expanded.

Bennett & Belfort, P.C. Partner David Belfort speaks at MATA Annual Convention

Posted on: May 30th, 2014 by admin

On May 13, 2014, Bennett & Belfort, P.C. partner David Belfort was an invited speaker at the 2014 Massachusetts Academy of Trial Attorneys (MATA Event) annual Convention.  Attorney Belfort served on a panel alongside Matthew Fogelman, partner at Fogelman & Fogelman LLC, that focused on both substantive employment law issues impacting personal injury plaintiffs and practice issues affecting law firm management.

Attorney Belfort focused his substantive employment law presentation on the Americans with Disabilities Act and M.G.L. c. 151B (Massachusetts’ anti-discrimination statute).  He discussed leave issues and the mechanisms afforded by key disability statutes to prohibit discrimination based on legally recognized disabilities.  Mr. Belfort outlined current precedent as to reasonable accommodation requirements and the reasonableness of leave as a workplace adjustment, the retaliation provisions protecting employees from adverse action when asserting their rights under the disability laws and the mandated good-faith interactive process that employees (and their advocates) should explore.

The panelists also discussed strategies for sound law practice management of firm employees, touching on the importance of certain workplace policies (e.g. sexual harassment), mischaracterization of employees as independent contractors and wage laws that require particular attention in the law firm context.

Bennett & Belfort, P.C. Partner David Belfort Serves as Panelist at the MCLE Employment Law Spring Symposium 2014

Posted on: May 15th, 2014 by admin

photo 5.1.14

On May 1, 2014, Bennett & Belfort, P.C. partner David Belfort served as an invited speaker at the MCLE Employment Law Spring Symposium 2014.  Attorney Belfort spoke on two topics: “Spinning a Masterful Deposition Spider Web” and “Legalized Marijuana in the Workplace.

His deposition presentation focused on the central goals of conducting depositions in employment cases, the rules of civil procedure that are implicated and strategy decisions that practitioners routinely consider.  This was a practical presentation aimed at focused deposition practice in the context of employment claims.  Later, Mr. Belfort, along with his colleague and seminar Chair, Lori A. Jodoin, Esq. of Rodgers, Powers & Schwartz, LLP, wrestled with the workplace implications of the new medical marijuana law.  A core debate by the panelists centered on whether marijuana will be considered like other controlled substances (e.g. Oxycontin) or, due to its illegality under Federal Law, differently for purposes of workplace drug testing and disability protections and reasonable accommodation analysis.

Mr. Belfort was joined by a distinguished panel (pictured above – from right to left) that included Honorable Judith G. Dein, Justice of the U.S. District Court, District of Massachusetts, James W. Buckling, Esq. of Foley Hoag LLP, Jonathan J. Margolis, Esq. of Rodgers, Powers & Schwartz, Honorable Edward P. Leibensperger, Justice of the Massachusetts Superior Court, Karam Deltufo, Esq. of Dana-Faber Cancer Institute, Lori Jodoin and Mr. Belfort.

The webcast of this program can be accessed through the MCLE website   (http://www.mcle.org/product/catalog/code/2140254WBA).

Bennett and Belfort, P.C. Partner, Todd Bennett, Speaks at the Massachusetts Bar Association’s Annual Labor and Employment Spring Conference

Posted on: April 29th, 2014 by admin

On April 24, 2014, the Massachusetts Bar Association welcomed Bennett & Belfort, P.C. partner, Todd Bennett, to the faculty of its 35th Annual Labor and Employment Law Spring Conference.

Todd Bennett Jeffrey Dretler

Joined by his colleague, Jeffrey Dretler, of Fisher & Phillips, LLP, Todd and Jeff led the dynamic presentation on “Drafting and Negotiating Settlement and Severance Agreements.”

Drawing on their extensive knowledge of employment issues, Todd and Jeff presented both the employer’s and the employee’s perspective of how to best negotiate and draft severance and settlement agreements.  This practical skills seminar shed light on critical issues, including:

  • Negotiation strategies;
  • The nature and categorization of payments (wages, emotional distress, attorneys fees);
  • Awareness of the tax treatment of different payments;
  • Non-monetary benefits, such as confidentiality, non-disparagement, references, liquidated damages, no-rehire provisions, enforcement provisions and cooperation with government entities.

The conference highlighted developments in the fields of labor and employment law, which also included a keynote address by the Honorable Nancy Gertner (ret.).  Todd and Jeff’s discussion regarding Settlement and Severance Agreements was an integral part of the conference.

35h Annual Labor and Employment Law Spring Conference

Attorney Belfort Co-Presents “Employment Law for Lawyers”

Posted on: April 18th, 2014 by admin

photo (2)On March 26, 2014, Bennett & Belfort partner David Belfort teamed up with his colleague Catherine Reuben of Hirsch Roberts Weinstein to present a seminar on Employment Law for Lawyers at the Massachusetts Bar Association.  Geared to the sole or small firm practitioner or firm administrator, this program delivered practical advice and insights on a variety of work related issues faced by lawyers in their roles as employers.

Regardless of the area of legal practice, as law firms seek to properly manage their workforce and add lawyers, paralegals and other support staff, proactive personnel management becomes crucial.  Lawyers often spend increasing amounts of time managing internal employee issues rather than engaged in the practice of law – and are advised to tread carefully, seeking the advice of outside employment counsel when necessary, in the ever changing discipline of employment law.

Attorneys Belfort and Reuben led an interactive seminar that included discussion on the following issues:

Salary and overtime regulations,
Contracting temporary employees,
Legal (and illegal) interview questions,
“Must have” policies for personnel manuals,
Fair benefit and time-off practices, and
Absenteeism and leaves of absence.

In addition, participants examined how to treat employees properly when faced with poor performance or on the way out – and minimizing law firm exposure in discipline and termination based claims.

This valuable program is available through the Massachusetts Bar Association “MBA On Demand” service at: http://www.massbar.org/cle/mba-on-demand?p=3397

 

 

 

 

 

Can Employees Be Fired for Using Medical Marijuana?

Posted on: April 10th, 2014 by admin

Will employees who suffer from debilitating conditions be forced to choose between receiving prescribed medical treatment and keeping their jobs?

wwa_MikeBennett & Belfort partner Michael L. Mason posed this question in a full-page opinion article in the March 31st issue of Massachusetts Lawyer’s Weekly.  Mr. Mason provided an in-depth discussion of the Massachusetts Medical Marijuana Act as it relates to employment law in the Commonwealth.

There are several features of Massachusetts law which set it apart from statutes in other states. While other medical marijuana laws have been interpreted as making limited exceptions to criminal law, the Massachusetts law is more broad and provides that “any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.”  In addition, employees who are terminated due to off-site use of a medication prescribed to treat their disability are protected under the Massachusetts anti-discrimination in employment statute.

Massachusetts law is also distinct in the extent to which it enforces privacy rights, limiting an employer’s right to test for off-site drug use. The Commonwealth’s privacy act can provide a mechanism for employees who have been terminated for use of medical marijuana to contest their termination in situations where off-site, private use of medical marijuana does not impact workplace safety.

Of course, there are still reasons why employers may be justified in terminating employees for using marijuana, but, overall, Mr. Mason finds that medical marijuana users have reason to be optimistic that they may not have to choose between receiving treatment and keeping their jobs – at least in Massachusetts.

Click here to read the full, pre-publication article: Can Employees Be Fired for Using Medical Marijuana

Find Attorney Mason’s article on the Massachusetts Lawyer’s Weekly Website at:  http://masslawyersweekly.com/2014/03/27/can-employees-be-fired-for-using-medical-marijuana/

 

B&B Partner Dave Belfort Chairs MCLE Seminar on Damages

Posted on: March 7th, 2014 by admin

On February 28, 2014, Bennett & Belfort, P.C., Partner David Belfort chaired  the MCLE New England Seminar, Proving and Valuing Damages in Employment Cases.

Before both a live and webcast audience, Attorney Belfort introduced the topic with a review of the categories of damages available in employment cases.  Mr. Belfort discussed compensatory damages, such as front and back pay, as well as emotional distress and lost benefits.   He also reviewed the statutory frameworks that give rise to multiple damages, punitive damages and the recovery of attorneys’ fees.

Mr. Belfort was joined by a distinguished panel that included neutrals Honorable Peter M. Lauriat, Associate Justice of the Massachusetts Superior Court and MCAD Senior Hearing Officer Eugenia Guastaferri.  Mr Belfort’s colleagues, Employee advocate Inga S. Bernstein of Zalkind, Duncan & Bernstein, and management-side attorney Scott J. Connolly of Morse, Barnes-Brown & Pendleton provided excellent explanation and practical practice pointers from their respective advocacy perspectives.

The seminar covered a diverse set of damages issues and perspectives including relative to: case valuation, the use of financial and medical experts, strategies for proving emotional distress, the impact of liability evidence, managing client expectations, and the attorney’s fee petition.   The neutrals provided insightful tips “from the bench” including practice pointers and lessons gleaned from advocates that have appeared before them.  The webcast of this program is available through MCLE (https://www.mcle.org/program-calendar/program-catalog.cfm?product_code=2130252P01.)

davemcle2

The MCLE Panel:  Dave Belfort, Inga Bernstein, Hearings Officer Eugenia Guastaferri,

Scott Connolly, and the Honorable Peter Lauriat.