Bennett & Belfort, P.C. partner, David E. Belfort , co-chaired, along with Margaret Paget and John Tocci a November 24, 2015 round table discussion at the Massachusetts Bar Association entitled “Legislative Updates on Employment Law with State Legislators” .
The legislative panelists included Rep. John Scibak, Chairman, Joint Committee on Labor and Workforce Development, Sen. Michael J. Barrett, Vice Chair, Joint Committee on Labor and Workforce Development and Rep. Kenneth I. Gordon, Vice Chair, Joint Committee on Election Laws and primary sponsor of H1718 .
The panelists engaged in a lively discussion in a packed room, providing helpful insights into the legislative process and their views on the likelihood that various pending employment legislation would become law.
The panelists addressed the following bills:
- H1769 – The Pregnant Workers Fairness Act
- H1718 – An Act Establishing Family and Medical Leave and Temporary Disability Insurance
- H1771 – An Act Addressing Workplace Bullying and Harassment
- H786 – the Mental Health Parity Bill, and
- H1757 – An Act addressing Non-discrimination Training in the Workplace
- S1024 – An Act to establish a living wage for employees of big box retail stores and fast food chains.
- Various Minimum Wage initiates.
In a published opinion by Massachusetts United States District Court Judge Richard G. Stearns, Bennett & Belfort partner Eric LeBlanc successfully defeated Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s claims of age discrimination under M.G.L.c. 151B and the Age Discrimination in Employment Act.
In Seifaee, the 61-year-old Plaintiff was terminated as part of a reduction in force, along with 13 other employees – all over the age of 55. Seifaee v. Areva, Inc., 2015 U.S. Dist. LEXIS 152356 (D. Mass. Nov. 10, 2015). Plaintiff brought federal and state law claims alleging discrimination based on disparate treatment and disparate impact as a result of his age, as well as claims of unlawful interference arising from Defendant’s alleged misconduct.
In denying Defendant’s motion, the Court indicated that the age related statistical evidence presented by Plaintiff may well be sufficient by itself to permit a finding in plaintiff’s favor. In relevant part, the Court stated:
“At the end of the day, however, the mere fact alone that a supposedly objective process could look across a company at 136 employees and happen by chance to select an entire cohort of persons aged 55 or older for termination, while possible, seems statistically improbable (as Seifaee’s expert contends) and that alone might justify a verdict in Seifaee’s favor…The credibility of Seifaee’s statistical evidence is a question for the jury.” Id. at 13-12.
Further, the Court found that the age-related disparate impact claims are actionable under M.G.L.c. 151B, despite earlier First Circuit case law that brought this into question. Specifically, the Court acknowledged that Mullin v. Raytheon Co., 154 F.3d 696 (1st Cir. 1999) no longer controls, stating “[i]n Mullin, the First Circuit offered the prediction that ‘the SJC likely will look to [its and other] federal courts’ interpretation of the ADEA and hold that an age discrimination claim cannot be grounded solely on a theory of disparate impact.’ It turned out that the First Circuit was wrong in its fundamental premise…As the Massachusetts Appeals Court has since followed Smith’s lead (citations omitted), I have no reason to believe that the SJC would do differently.” Id. at 13.
This case will now proceed to a jury trial.
Congratulations to Dr. Seifaee and Mr. LeBlanc for this excellent result.
On October 23, 2015, B&B partners, Eric LeBlanc and Todd Bennett, obtained a favorable jury verdict for their client in the United States Federal District Court in Boston. Mr. Bennett and Mr. LeBlanc represented PMLRA Pizza, Inc. (“PMLRA”), a franchisee of Domino’s Pizza, and Henry Askew (individually), the President of PMLRA Pizza, Inc.
At issue in the case, was:
a) Whether or not delivery charges are “Service Charges” under the Massachusetts Tips Act,
b) Whether a reasonable customer would be aware that a delivery charge was not a gratuity.
The case was brought by a former PMLRA food delivery driver, seeking compensation under the Massachusetts Tips Act and the Massachusetts minimum wage statute.
As to the issue of whether delivery charges were “service charges” under the Tips Act, PMLRA argued that the evidence showed that that these charges were not service charges under the law but, instead were used to address rising operational costs, versus payment for the actual service of delivery.
The case was tried over the course of one week before Hon. Judge William G. Young, and the jury returned its verdict in favor of PMLRA.
Congratulations to Mr. LeBlanc and Mr. Bennett for a hard fought federal court trial victory.
We are proud to announce that Thomas Reuters / Super Lawyers has again listed Bennett & Belfort P.C. partners Todd J. Bennett, David E. Belfort, Michael L. Mason (Rising Star) and Eric R. LeBlanc (Rising Star) among the 2015 New England Super Lawyers.
Mr. Bennett and Mr. Belfort were selected “Top 100 Lawyers in New England” for a second consecutive year. Attorney Bennett has been named a Super Lawyer for the past five years in the area of Business Litigation while Mr. Belfort has been selected a top Lawyer in the area of Employment Litigation: Plaintiff for the last decade. Mr. Mason and Mr. LeBlanc are once again Rising Stars in the areas of Employment and Labor and Business Litigation, respectively.
Super Lawyers rates lawyers in more than 70 practice areas. They evaluate attorneys who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. While up to 5 percent of the lawyers in a state are named to Super Lawyers, no more than 2.5 percent are named to Rising Stars.
Bennett & Belfort P.C. concentrates its practice in business and commercial litigation and employment law and litigation.
On August 18, 2015 Bennett & Belfort attorneys and staff sponsored, prepared and served lunch to about 180 women at Rosie’s Place, a sanctuary for poor and homeless women in Boston’s South End.
Bennett & Belfort P.C. partner, Eric R. LeBlanc, was featured in an article for IE3 Global, entitled “Dismissing Underperforming Employees: Tips and Potential Pitfalls.” Audrey Henderson, who authored the publication, interviewed Attorney LeBlanc regarding proactive safeguards business owners can establish in order to minimize potential lawsuits by terminated employees.
When employers effectively communicate with their employees and treat them fairly, the chances of a terminated employee taking adverse legal action are considerably diminished. Having represented both employers and employees, Attorney LeBlanc understands the value of effective communication between employers and employees, as well as the notion that employees who perceive that they have been treated fairly are less likely to sue their former employers.As outlined in the article, “Employers should be proactive in the treatment of employees prior to termination versus reactive in dealing with underperforming workers.”
The article can be accessed through the IE3 website (http://www.ie3media.com/dismissing-underperforming-employees-tips-potential-pitfalls/).
On June 17, 2015, Bennett & Belfort partner, David E. Belfort and associate, Sarah E. Amundson, co-lectured a presentation entitled “Employment Law: Primer and Pitfalls” for their alma mater Hobart and William Smith Colleges‘ Professional Networking Group. The discussion constituted a broad introduction to Massachusetts employment law and covered topics such as at-will employment, employee privacy, and the Wage Act. The event was held at the offices of Moors & Cabot at 200 Devonshire Street, Boston.
UPS driver Peggy Young became pregnant in the fall of 2006 and was advised by her doctor to restrict lifting to 20 pounds. Young’s job typically required her to lift up to 70 pounds, and she sought accommodations from UPS to comply with her doctor’s advice. UPS denied her request and told her to return to work after the pregnancy. UPS took the position that it could only accommodate lifting restrictions for employees in three specific groups: employees who were considered disabled under the Americans with Disability Act, employees who were injured on the job, and employees who lost their Department of Transportation Driving Certification. In the past, UPS accommodated workers who were unable to lift heavy objects due to job related injuries only, not physical reasons. In justifying its denial of Young’s request, UPS asserted that it was exercising neutrality and fairness.
As a result, Young lost out on several months of pay without medical coverage. She sued UPS in July 2007 under the Pregnancy Discrimination Act (“PDA”). The PDA states that pregnant employees “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” According to Young, the refusal of UPS to temporarily reassign her job duties or allow co-workers to assist with heavy lifting tasks constituted discrimination in violation of the PDA. She argued that the PDA required employers to accommodate pregnancy in the same manner they accommodate any temporary disability. UPS countered that since it only accommodated lifting restrictions for workers who were injured on the job, its refusal to accommodate Young was in keeping with its policy and was not discriminatory. Both a federal court judge and an appeals court ruled in favor of UPS, stating that the company’s policy was neutral, and the employees whom UPS had accommodated were not comparable to Young because their restrictions were related to distinguishable, job-related factors. Not satisfied with the interpretation of the PDA, Young took the matter to the Supreme Court which ruled 6-3 in her favor.
Justice Breyer, who authored the decision for the Court, found both the arguments of Young and UPS wanting. While he didn’t agree with Young that the PDA grants pregnant women a blanket right to accommodations, he also didn’t agree that UPS’ neutrality argument was viable. Rather, Justice Breyer’s opinion clarified that if an employer chooses to accommodate restrictions caused by some temporary disabilities, the employer must also accommodate the same restriction if caused by pregnancy.
Following the Court’s ruling, Young must now return to Virginia courts and prosecute her discrimination claim under this clarification of the law. Meanwhile, employers who are subject to the PDA are now on notice that they must accommodate pregnancy-related restrictions to the same extent that they accommodate other disabling conditions when they arise.
Bennett & Belfort, P.C. partner David E. Belfort served as invited faculty for the May 29, 2015 Massachusetts Bar Association legal education conference How to Start and Run a Successful Solo or Small Firm Practice. Mr. Belfort focused his presentation on practical employment law tips for those forming new law firms. He discussed employment law basics in the context of Massachusetts law governing personnel management, employment policies (including sexual harassment and privacy), hiring, firing and traps for the unwary.
Massachusetts has modernized its rules governing attorney argument as to specific damage awards at trial – but only in Superior Court. Newly amended M.G.L. chapter 231, section 13B, has opened the door for juries to consider specific requests for damage sums which are sought by an aggrieved or injured plaintiff.
Prior to this amendment, plaintiffs’ counsel in Superior Court civil trials were prohibited from arguing that their clients were entitled to a specific award when it came to intangible damages like those awarded for emotional distress, pain and suffering, the loss of use or function of a body part, or punitive damages. Massachusetts jurors were expected to determine damage amounts, if any, based on their life experiences. This often left juries without guidance as to unfamiliar or esoteric concepts of value without any direct assistance or argument from counsel. Juries were left to determine what damage sums the evidence supports and the law allows given the nature and extent of a breach or injury.
With the recent implementation of the new law all this changed. Now “in a civil action in the Superior Court, parties, through counsel, may suggest a specific monetary amount for damages at trial.” Freed to advocate for their clients as to remedies, plaintiff’s counsel may now provide juries with argument geared at suggesting specific awards for damages in cases involving financial recovery.
As with all argument at trial, there are risks. Attorneys may well suggest damage figures that are far lower than a jury would have ordinarily awarded. Alternatively, a jury might find an advocate’s recommendations exaggerated and artificially high award recommendations may undermine a lawyer’s credibility in the eye of the jury. This may well impact their assessment on the merits of liability. Of course, leaving the damages assessment entirely up to the jury is also a danger in that ordinary jurors considering large money figures might well minimize damage awards based on their personal life experiences, biases against run-away jury awards or preconceived notions association with the personal perceptions or misconceptions of a profit motive by the lawyers.
Massachusetts’ new law also changes the manner in which defendant’s counsel may wish to respond to claims for specific damages. Attorneys defending civil cases in the Superior Court should consider attacking inflated or unrealistic damage suggestions. Of course, a liability defense aimed at preventing a damage assessment altogether will remain a focus in most cases for defense counsel. In most cases, including when liability is clear, defense counsel must be prepared to argue and advocate for their client’s own view on damages, including presenting a rational view on the scope and extent of injury or damage to the plaintiff. For example, Defendants routinely highlight the role of any pre-existing injury or allude to evidence of plaintiff’s failure to mitigate their damages.
As attorneys in Massachusetts wrestle with this new law at the Superior Court level, Bennett & Belfort PC will keep you updated as to trends and developments in this rapidly evolving area of trial practice. Should you have any questions on this or any other employment legislation, please feel free to contact Bennett & Belfort P.C.