The B&B Docket Blog
Developments in the Dynamic World
of Business and Employment Law
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.
Attorney Belfort Moderates Labor & Employment Law Update Panel at MBA’s 36th Annual Spring Conference
On Tuesday, April 14, 2015, Bennett & Belfort partner, David E. Belfort moderated the Labor and Employment Update Panel at the Massachusetts Bar Association’s 36th Annual Labor & Employment Law Spring Conference at Suffolk University Law School. The Panelists addressed a variety of new developments, both legislative and case-related, in both labor and employment law over the last year.
Seasoned labor attorneys Ira Sills and James Pender led the panel in addressing, among other issues, the NLRB’s newly announced expedited election rules and the expanding prohibitions limiting employee communications as to the terms and conditions of employment under the NLRA – even in the non-unionized workplace. Experienced employment law panelists, Anthony Califano and Nina Kimball, addressed a variety of major US Supreme Court decisions that came down over the last year, including relative to pregnancy accommodations. On the very active state level, the panel highlighted new Massachusetts legislation pertaining to gender neutral pregnancy leave, paid sick leave, protections for victims of domestic violence and the new Domestic Workers’ Bill of Rights (a/k/a “Nanny law”).
Below are some facts about sexual harassment claims in Massachusetts that you may not have known. There are many other important details relating to sexual harassment claims that are not discussed in this blog. We will update future blogs with additional information regarding sexual harassment law. If you have questions about sexual harassment in Massachusetts, please contact our office (617.577.8800).
Sexual harassment is a form of sex discrimination that violates both Massachusetts law (General Laws, Chapter 151B and General Laws, Chapter 214, Section 1C) and federal laws (Title VII of the Civil Rights -Act of 1964).
THERE ARE 2 TYPES OF SEXUAL HARASSMENT IN THE WORKPLACE
1. “Quid pro quo” harassment
When an employee with authority or control over the terms and conditions of another employee’s work offers him/her a work benefit or advantage in exchange for sexual favors or gratification, this is quid pro quo harassment. Also, if an employee is denied a work benefit or advantage due to his or her refusal to provide sexual favors, or as a result of rejecting requests for sexual favors, this is quid pro quo sexual harassment. For example, quid pro quo harassment may exist if an employee declines to provide sexual favors to his or her boss and as a result, suffers termination; demotion; denial of a promotion; transfer; reduced or less preferential hours or scheduling; poor performance reviews; or decreased compensation.
2. A “Hostile Work Environment” claimant must show that:
he or she was subjected to conduct of a sexual nature;
the conduct of a sexual nature was unwelcome;
the conduct of a sexual nature had the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment; and
the conduct unreasonably interfered with the claimant’s work performance or altered the terms and conditions of the claimant’s employment.
While these cases are fact specific, any of the following types of conduct can serve as the basis for a potential hostile work environment sexual harassment claim (this list is not exhaustive): inappropriate touching; sexual jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or making sexual gestures. Keep in mind that other civil claims and criminal sanctions might be available remedies as well, including, but not limited to, assault and battery, interference with contractual relations, and retaliation. Therefore, a careful review of these types of cases is recommended.
NOTE: If the harasser is NOT in a supervisory role, the victim – in most cases – is expected to notify the Human Resources Department or a managerial employee of the employer, so that the employer is on notice of the misconduct and has an opportunity to take corrective action.
If the harasser is in a supervisory role, the employer is considered “strictly liable” for the conduct, whether or not the employer is aware of the sexual harassment.
NOT EVERY INAPPROPRIATE COMMENT GIVES RISE TO A SEXUAL HARASSMENT CLAIM
Careful consideration must be given to an analysis of whether conduct in a particular situation is sexually charged (and not just a stray remark) or sufficiently severe and pervasive at the workplace to constitute actionable sexual harassment.
A single “off color” or sexually charged action or comment may or may not be sexual harassment. In order to prove a hostile work environment sexual harassment claim, the claimant must show that the conduct was either severe or pervasive, or both. While a single instance of improper lewd touching is usually severe enough to constitute a hostile work environment claim, generally speaking—even where it is inappropriate or sexually charged—a single lewd or inappropriate comment might not constitute a hostile work environment claim. This is very fact specific, and each circumstance (including the background information) must be evaluated on a case by case basis.
SEXUAL HARASSMENT MATTERS ARE NOT ALWAYS MALE HARASSER AND FEMALE VICTIM
Not all sexual harassment cases involve a male harasser and a female victim. The victim or harasser may be male or female, and same sex sexual harassment claims (female harasser and female victim, male harasser and male victim, etc.) appear to be on the rise.
AN EMPLOYER MAY BE LIABLE FOR THE ACTIONS OF THIRD PARTIES
An employer may be held liable for sexual harassment committed by non-employee third parties when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. Generally, the greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for the unlawful harassment.
MOST SEXUAL HARASSMENT CLAIMS MUST BE FILED WITHIN 300 DAYS
Sexual harassment claims pursuant to General Laws, Chapter 151B must be filed at the Massachusetts Commission Against Discrimination (MCAD) and/or the Equal Opportunity Employment Commission (EEOC) within 300 days of the adverse/discriminatory conduct. There are exceptions, including situations in which the conduct complained about was of a continuing nature.
If a claimant files a claim after the applicable statute of limitations, his or her claim will be forever time barred. Time is of the essence with any discrimination claim.
NOT ALWAYS EMPLOYMENT RELATED
Most sexual harassment allegations arise from an employer-employee relationship. However, sexual harassment is also prohibited in places of public accommodation,educational facilities,and housing.
We will update future blogs with additional information regarding sexual harassment law. Please do not hesitate to contact us at 617.577.8800 if you have any questions.
On February 25, 2015, Bennett & Belfort P.C. partner David E. Belfort served as a panelist for an MCLE seminar entitled “Top 25 Keys Cases Every Employment Litigator & Counselor Must Know.” Joining Attorney Belfort on the panel were his esteemed colleagues Attorneys Andrea C. Kramer (Chair) of Hirsch Roberts Weinstein LLP and Nina J. Kimball of Kimball Brousseau LLP.
The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field. Attorney Belfort was charged with discussing cases relating to discrimination damages and wage and hour disputes. There was a rigorous discussion as to a number of other relevant topics, including: proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law.
There was a lively dialogue regarding associational discrimination: an evolving and active area of employment law in which the individual experiencing discrimination is not a member of a protected class, but is related to (or associated with) someone who is. The panelists also discussed the interesting procedural history and standards of appellate review of these central cases – often involving the interplay between various tribunals such as the Supreme Judicial Court’s review of lower Courts’ decisions or the Trial Court’s review of MCAD (Massachusetts Commission Against Discrimination) decisions. One theme was the fight among litigants as to what standard of review governed each circumstance. While in some cases the Courts conduct a “de novo” review (completely new trial on the merits) in others there is only a limited 30A administrative review available. This 30A process is conducted without a jury, is a far more deferential standard to the underlying Agency decision, and considers only facts already in the record.
Here is a list, by general topic, of the top 25 Massachusetts cases that were covered in the Seminar:
Discrimination Law – General
1. Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000)
2. Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)
3. College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)
4. Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)
5. Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)
6. King v. City of Boston, 71 Mass. App. Ct. 460 (2008)
7. GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)
8. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)
9. Haddad v. Wal-Mart, 455 Mass. 91 (2009)
10. Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)
11. City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)
12. Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)
13. Flagg v. AliMed, Inc., 466 Mass. 23 (2013)
Disability Accommodation, Interactive Dialogue, and Leaves of Absence
14. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002)
15. Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)
16. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)
Wage & Hour Law
17. Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)
18. Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435 Mass. 718 (2002)
19. Camara v. Attorney General, 458 Mass. 756 (2011)
20. Smith v. Winter Place LLP, 447 Mass. 363 (2006)
21. Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)
22. Depianti v. Jan–Pro Franchising Int’l, Inc., 465 Mass. 607 (2013)
23. Lipsitt v. Plaud, 466 Mass. 240 (2013)
Common Law Claims
24. Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)
25. Fortune v. National Cash Register Co., 373 Mass. 96 (1977)
The webcast of this program can be accessed through the MCLE website (http://www.mcle.org/product/catalog/code/2150165WBA).
On January 7, 2015, Governor Deval Patrick signed into law An Act Relative to Parental Leave (Parental Leave Act). Effective April 7, 2015, the new law essentially makes the existing Massachusetts Maternity Leave Act (MMLA) gender neutral, so that the protections under the MMLA apply equally to both men and women. The Massachusetts Parental Leave Act also extends benefits to the placement of a child pursuant to a court order, in addition to coverage for birth and adoption, both of which protections are covered for women under the MMLA.
The Massachusetts Parental Leave Act requires employers with six or more employees to provide eligible employees with 8 weeks of unpaid leave after the birth or adoption of a child. Full-time employees become eligible for leave after the completion of an initial probationary period set by the employer, but no longer than three months. If no period is set, employees become eligible after three consecutive months of work. Part-time employees are not eligible for leave under the law. Employees must provide employers with notice at least two weeks prior to the date he or she plans to begin leave, or as soon as possible if the delay is outside the employee’s control.
The law generally requires that employees be returned to the same or similar position with the same salary and benefits after leave ends, though exceptions apply where layoffs occur. If two employees of the same employer are parents of the same child, the employees will only receive a total of 8 weeks between them, rather than 8 weeks each (for a total of 16 weeks). Where applicable, parental leave may be taken more than once annually under the Parental Leave Act.
Parental leave may be paid or unpaid, or may exceed 8 weeks at the discretion of the employer. If an employer provides more than 8 weeks of leave, but does not extend status and benefit protections beyond the required 8 weeks, the employer must inform the employee in writing before leave begins that loss of reinstatement or benefits will result from taking longer than 8 weeks.
Employers must post notice of employees’ rights under the Parental Leave Act and the employer’s related polices in an area where employees can see them. Similar to the Maternity Leave Act, the Massachusetts Commission Against Discrimination is responsible for enforcing provisions of the Parental Leave Act, and employees who believe their rights have been violated under the law must file a complaint with the MCAD within 300 days of the alleged violation in order to protect their rights.