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

MASSACHUSETTS CONSUMER PROTECTION LAW

Posted on: September 29th, 2017 by admin

Someone pays a contractor, but the work is not done, or the work violates the building code.  A vendor has “hidden fees,” or falsely states in its advertising that it has adequate insurance to cover damage to property.  These are examples of “unfair or deceptive acts or practices” from which a consumer can seek relief under Massachusetts General Laws, Chapter 93A.  But it is important to take certain steps to properly assert your rights.  M.G.L. c. 93A, sec. 2.

The first step in a 93A claim is the demand letter.  A wronged consumer must notify the offending business of his or her claim in writing, and allow the business 30 days to respond with a “reasonable offer of settlement.”  The letter must clearly identify the consumer making the claim, reasonably describe the complained of unfair or deceptive act or practice, and state the injuries suffered by the claimant because of the unfair or deceptive act or practice.  Moreover, rulings of the Massachusetts Supreme Judicial Court suggest that a demand letter is not adequate under Chapter 93A unless it defines the relief—financial compensation and/or specific actions—which the consumer seeks in order to settle the claim.

The timing of the demand letter is also crucial.  If a consumer wishes to file a lawsuit against an offending business, the demand letter must be mailed or delivered at least 30 days before the lawsuit is filed; failure to do so is grounds for a court to dismiss the lawsuit.  Chery v. Metro. Prop. & Cas. Ins. Co.  (If a 93A claim is being raised as part of a counterclaim to an existing lawsuit, if a 93A claim is a “business to business” claim, or if the offending business has no location or assets in Massachusetts, a demand letter is not required.)  Additionally, a claim for violating M.G.L. Chapter 93A must generally be filed within four years of the time the unfair or deceptive business practice occurred.  M.G.L. c. 260, sec. 5A.

After receipt of the demand letter, the business has 30 days to respond to the consumer’s settlement demand in writing with a “reasonable offer of settlement.”  If the consumer does not accept the offer, or if an agreement cannot be negotiated and the consumer files a lawsuit, there are risks that both sides must face.  The consumer, if successful in court, may recover up to three times the actual damages suffered, and the court may also compel the business to pay the consumer’s attorney’s fees.  M.G.L. c. 93A, sec. 9.  However, a court may find that the business’s original settlement offer was reasonable and award the consumer only that amount—or the court may find that the consumer’s complaint is simply not supported by the facts.  The court must first determine whether the business’s conduct was, in fact, unfair or deceptive; and if the answer is yes, then the crucial questions to be decided are whether the conduct was willful, whether the business’s refusal to grant the consumer his or her original demand was in bad faith, and whether the business was aware of its violation of the law.

Please note that a violation of Chapter 93A does not cover conduct which is merely negligent in nature or which is simply in breach of a contract.  Also, in addition to consumer-related claims, Chapter 93A covers unfair competition and certain types of “business to business” claims, where a party is alleged to have committed unfair or deceptive acts or practices.

Bennett & Belfort P.C. frequently represents both individuals and businesses in both bringing and defending alleged violations of M.G.L. c.93A, Sections 2 and 11.

National Business Institute (NBI) Human Resource Law Seminar

Posted on: August 11th, 2017 by admin

 

wwa Eric 117x150
On July 12, 2017, Bennett & Belfort partner Eric R. LeBlanc spoke at the National Business Institute (NBI) Human Resource Law Seminar alongside Debra Dyleski‑Najjar, Julie A. Moore, Sarah E. Worley, Laurel M. Gilbert, Richard S. Loftus and Jeffrey S. Siegel.  Attorney LeBlanc and the other speakers shared their knowledge and perspectives on various aspects of human resource law, addressing such topics as “Updates in Employment Law;” “Discipline & Discharge- Necessary Documentation;” “Employee Handbooks & Policies;” “Wage & Benefits Issues;” “Investigating Complaints of Harassment & Other Misconduct;” and “Alternative Dispute Resolution in the Employment.”

Eric spoke about proper procedures to follow and pitfalls to avoid during all phases of the employer-employee relationship:  the hiring process, the period of employment, and the employee’s exit from employment, whether voluntary or involuntary.

Eric’s lecture touched on the following fundamentals:

A. Hiring:  How to craft a clear job description; what to look for, what to say and do, and what not to say and do how during selection and         vetting of candidates.

B. Policies and procedures:  Establishing unequivocal, written policies in the following areas and following them closely:

  1. Employment at Will
  2. Equal Opportunity
  3. Anti- Discrimination/Anti-Harassment/Reporting(including the process for investigating employee complaints of discrimination and harassment)
  4. Payment of Wages
  5. Conduct/Discipline

C. Performance:  Careful, contemporaneous documentation of employees’ job performance.

D. Termination:  Again, careful and contemporaneous documentation of the process as well as the presence of at least one witness to the employer-employee interactions.

Eric emphasized to seminar attendees that no matter how egregious an employee’s performance might be, compassion and respect are crucial elements of an employer’s stance at every point on the employment time line.

We are proud that Eric’s expertise in employment law was recognized by the National Business Institute, and pleased that he was able to contribute to employers’ understanding of practices beneficial to both sides of the employer-employee relationship.

Todd Bennett and Craig Levey Speak at the Massachusetts Bar Association’s Annual Labor & Employment Conference

Posted on: May 22nd, 2017 by admin

TB 124x150Levey Craig 2 150x150

On May 12, 2017, Bennett & Belfort, P.C. attorneys Todd J. Bennett and Craig D. Levey presented at the Massachusetts Bar Association’s 38th Annual Labor & Employment Spring Conference held at the MBA’s offices in Boston.  

 Attorney Bennett was a panelist along the Honorable Robert B. Gordon of the Massachusetts Superior Court and David Kerrigan of Kenney & Sams, P.C.  Together they presented relevant case law and practical tips on key discovery issues in Employment Law litigation, including: (1) defendant’s financial information for purposes of punitive damages; (2) social media posts; (3) production of mental health records; (4) employer’s past claims of discrimination/harassment; and (5) internal investigation documents.

Attorney Levey, who co-chaired the Conference along with Jaimeson Porter of Kenney & Sams, P.C., moderated the aforementioned discovery panel and a discussion on the Massachusetts Equal Pay Act, which included panelists Genevieve Nadeau, Division Chief of the Civil Rights Division of the Massachusetts Attorney General’s Office and Margaret Paget of Kurker Paget.

The Conference’s keynote speaker was Representative Stephen Lynch (D–Mass.), a member of the United States House Committee on Financial Services and the Committee on Oversight and Government Reform.

COURT RULING OPENS DOOR TO COMMISSION PAYMENTS AFTER EMPLOYMENT ENDS

Posted on: May 15th, 2017 by admin

Massachusetts employees who earn sales commissions may have a right to recover those commissions even after the end of their employment despite company policies to the contrary, according to the recent 2017 case of Israel v. Voya Institutional Plan Services, LLC.

The Massachusetts Wage Act  applies when wages, including commissions generated by salespersons, are considered earned.  Sales commissions are considered earned when they are due and payable.  The figure that is due and payable must be ascertainable with specificity and definitely determined.  Special contracts, agreement terms, personnel policies and employment manuals that circumvent application of the Wage Act are unenforceable according to both the express language of the Wage Act and public policy.  An employee who is not timely paid earned wages may be entitled to sue for three times the amount of withheld wages, interest, plus mandatory recovery of reasonable attorneys’ fees.  The Wage act is a powerful financial deterrent to prevent employers from improperly withholding earned wages and commissions.

Scales of justice no copyright pixabay 300x225

Massachusetts Courts have not definitively ruled on whether policies that prohibit the payment of commissions after an employee’s separation are indeed special contracts that violate the Wage Act. The Israel case involved a sales representative who was compensated in part with commissions based on sales.  The employer, Voya Institutional Plan Services’ (“Voya”), maintained a commission plan that entitled certain employees to commissions roughly three months after the company received payment on a sale.  The plan also contained a provision indicating that an employee who resigned would not be entitled to commissions following resignation.

Israel resigned his employment in lieu of being terminated.  At the time of his resignation, he had roughly $30,000.00 in completed sales commissions in the pipeline – which had not been paid exclusively because of the delay between accrual and payment date.  The employer refused to pay the commissions on account of its resignation policy.

The court in Israel  ruled that Voya and Israel’s commissions contract could improperly avoid the Wage Act’s requirement that commissioned wages be timely paid once the commission sums were definitely determined.  Since the commissions had been definitely determined before the end of Israel’s employment, the commissions were due and payable regardless of the employer’s policies or those contract terms suggesting otherwise.  Voya’s adherence to its commission policy in order to deny payment of commissions to Israel was found to violate the Massachusetts Wage Act.

The Israel court determined that the Wage Act trumped an employer’s policy prohibiting the payment of post separation commissions.  As such, Massachusetts employers and commissioned employees must be attentive to the timely payment of definitely determined sales commissions even after separation in order to comply with the strict requirements of the Massachusetts Wage Act.  Should you have any questions on the developments regarding the Massachusetts Wage Act of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.

 


 

Craig Levey Named “Up and Coming” Attorney by Massachusetts Lawyers Weekly

Posted on: April 7th, 2017 by admin

Levey Craig 2 200x300

Bennett & Belfort, P.C. is pleased to announce that Craig Levey has been selected by Massachusetts Lawyers Weekly to receive the Excellence in the Law Award in the category of “Up and Coming” Lawyers.  The “Up & Coming” category is a salute to the rising stars of the Massachusetts Bar who have been practicing for 10 years or less, yet have already distinguished themselves in the practice of law.  The 26 award winners were selected based on achievement in the legal field, high peer recognition, community activities, and civil involvement.

 

Outside of his thriving law practice, Attorney Levey is on the Board of Directors of the Boston Police Foundation, a non-profit organization created to raise financial support for needed resources for the Boston Police Department.  He is also on the Board of Directors of the Massachusetts Alliance on Teenage Pregnancy, a non-profit organization that advocates to increase opportunities for youth, and empower young adults to make wise decisions on relationships, parenting, and life.

 

Attorney Levey is an active member of the Massachusetts Bar Association’s (MBA) Labor & Employment Section Council, where he is co-chair of the 2017 annual conference.  At the MBA, Levey co-founded and currently co-moderates the “Feed Your Mind: Legal Lunch” series, a monthly program that discusses commercial litigation topics.  Levey is also an active member with the New England – Canada Business Council, an organization that assists to facilitate relationships between businesses in New England and Canada.

 

The Excellence in the Law Award dinner will be held on Thursday, April 27, 2017 at the Marriott Long Wharf Hotel in Boston.  The ceremony will also recognize individuals in the following categories: Excellence in Alternative Dispute Resolution, Firm Administration / Operations, Marketing, Paralegal Work, and Pro Bono.

 

Massachusetts Lawyers Weekly will publish interviews with the award winners in April in both print and online at www.masslawyersweekly.com.

 

 

 

Attorney Belfort Chairs MCLE Employment Law Seminar on Damages

Posted on: April 4th, 2017 by admin

2013 David B photo 150x150On March 27, 2017, Bennett & Belfort P.C. partner David E. Belfort again chaired and presented at a seminar entitled “Proving & Valuing Damages in Employment Cases” at Massachusetts Continuing Legal Education’s (MCLE) Boston conference center. Joining Attorney Belfort on the panel were his respected colleagues Attorneys Robert S. Mantell, Esq. of Powers, Jodoin, Margolis & Mantell LLP, Mary E. O’Neal, Esq. of Conn Kavanaugh Rosenthal Peisch & Ford LLP and Honorable Kenneth W. Salinger of the Superior Court, Business Litigation Session.  Mr. Belfort moderated the panel and presented an overview of employment law damages, proving wage and hour cases and issues involved with spousal testimony as to emotional distress injury.

Here is a list, of general topics, that were discussed at the Seminar:

  • How to Value a New Case and Identify Claims That Have Potential for High Awards/Exposure-and Manage Client Expectations Concerning Damages;
  • Whether and How to Effectively Use Financial or Medical Experts at Trial;
  • How to Effectively Introduce Damages Evidence in a Failure to Pay Wages Case;
  • Effective Strategies for Advancing and Rebuffing Attorney Argument as to Specific Monetary Damage Amounts (MGL c231 s. 13B);
  • Dealing with Front Pay Damages-How Long is Too Long;
  • Proving Emotional Distress-The Efficacy of Spousal Testimony;
  • How to Deal with an “eggshell” Plaintiff and the Admissibility of Plaintiff’s Psychiatric History;
  • When Should Counsel Seek to Bifurcate a Trial to Separately Address Liability and Damages- and How Should Employee Advocates Respond?
  • How to Minimize the Impact of Damning Liability Evidence When It Comes Time to Defend on Damages? Are There Ways for Defendants to Avoid or Minimize Punitive Damages?;
  • How to Craft a Favorable Jury Verdict Questions;
  • Should Unemployment Benefit Payments be a Set Off to a Damages Award?;
  • Tips for Filing and Opposing an Attorneys’ Fee Petition; and
  • How to Advance or Oppose a Motion for Remittitur.

WHEN IS THE DUTY TO ENGAGE IN THE INTERACTIVE PROCESS TRIGGERED?

Posted on: March 27th, 2017 by admin

In MCAD & Amanda LaPete v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) awarded Complainant (Amanda LaPete), a woman who was terminated while on approved leave for post-partum depression, back pay plus $50,000.00 for emotional distress stemming from her employer’s disability discrimination.  Docket No. 10-SEM-02769 (Kaplan, J., February 5, 2017).

While employed by Respondent (Country Bank for Savings), Complainant was granted 17 weeks of leave to give birth, which comprised of accrued sick and vacation time, eight weeks of maternity leave (as permitted by M.G.L. c. 149, § 105D), and an additional four weeks pursuant to the federal Family and Medical Leave Act (“FMLA”).

woman 358779 640 300x199

Complainant suffered post-partum depression while on leave and notified Respondent of her disability.  She consistently provided Respondent with updates during her leave, including a timeframe for her return to work.  Notably, Complainant fully intended to return to work with Respondent, yet her health care provider suggested she take further time off due to persistent depression and anxiety.  Complainant requested an additional four weeks of leave, however, Respondent ignored her request and terminated her employment.

The Massachusetts anti-discrimination statute, M.G.L. c.151B, prohibits discrimination by an employer based on disability.  To prove a case of disability discrimination for failure to provide a reasonable accommodation, complainant must show: (1) that she is “handicapped”; (2) that she is a “qualified handicapped person” capable of performing the essential functions of her job; (3) that she needed a reasonable accommodation to perform her job; (4) that Respondent was aware of her handicap and the need for a reasonable accommodation; (5) that Respondent was aware, or could have been aware, of a means to accommodate her handicap; and (6) that Respondent failed to provide Complainant the reasonable accommodation.  Hall v. Laidlaw Transit, Inc., 25 MDLR 207, 213-214 (2004).

In Country Bank for Savings, the MCAD Hearing Officer ruled that Complainant established sufficient evidence to prove a prima facie case of disability discrimination for failure to provide a reasonable accommodation by demonstrating that she: 1. was handicapped for purposes of the statute; 2. was qualified to perform the essential functions of her job; 3. required a reasonable accommodation; and 4. adequately kept Respondent informed of her need for an accommodation while out on leave.  The MCAD also found that Complainant’s finite request for extended leave was a reasonable accommodation so that she could cope with her post-partum depression.

The MCAD found that Respondent’s termination of Complainant without engaging in an interactive dialogue about the request for extended leave was a violation of the employer’s duty under the statute.  Importantly, the Hearing Officer stressed in her decision that an employer is not shielded from liability simply by allowing an employee leave under the FMLA.  Rather, the employer has an affirmative responsibility to engage in the interactive process when the employee is preparing to return from leave.

Notably, there was no persuasive evidence that Complainant’s request for extended leave would cause the Respondent an undue burden on its operations or finances.

This decision highlights the requirement that employers understand the timing of when their obligation to engage in the interactive process is triggered.  Though a company’s obligation is clear when an employee explicitly requests an accommodation, employers must also engage in the interactive process when they have reason to believe an employee needs a reasonable accommodation absent a specific request citing to the statute.

 

 

“Non Compete Confusion” Massachusetts Lawyers Weekly quotes David Belfort

Posted on: March 15th, 2017 by admin

2013 David B photo 150x150 150x150B&B Partner David Belfort was called upon for comment and quoted extensively in a recent Massachusetts Lawyers Weekly (“MLW”) article discussing enforcement of employee non-compete agreements.  The front page article entitled “Company acquisition leads to non-compete confusion” was published in the March 9, 2017, edition of MLW and focused on the implications on the enforcement of a restrictive covenant first in the case of an assignment and then as to statutory merger of the employer.

Two recent successive rulings by the Massachusetts Superior Court Business Litigation Session (NetScout Systems, Inc. v. Hohenstein) demonstrate that an employee non-compete agreement will only be as strong as the structural formation and modifications of the employer corporation.    In these two opinions, Judge Kenneth Salinger explained that an “assignment” of rights to a new entity, from one company to another, is treated less deferentially in enforcement of non-competition terms than a statutory merger, where a subsidiary of the original employer stands in the same legal shoes as the original employer.

In an initial ruling on a motion for preliminary injunction, the Court denied enforcement of a non-compete provision which included an assignment provision that included the company’s subsidiaries and affiliates, but did not specifically include its assignees in the definition of the company employer. Moving for reconsideration, the acquiring company was able to present new evidence that it was, in fact, a legal successor to the original company employer.   Despite the fact that the Court then found the non-compete to be enforceable, Judge Salinger concluded that the non-compete restrictions were too geographically broad.  As such, the non-compete could only be applied to the geographic area in which the employee formerly worked and he was free to continue working in a new region.

In this case the non-compete provision ultimately did not make a practical difference to the employee’s ability to work because the judge only prohibited him from working in his former region, which was outside of the territory he handled at his new employer.  Nonetheless, Attorney Belfort explained to MLW that these rulings provide a “cautionary tale” and illustrate the importance of careful drafting and review of non competition agreements.  Attorney Belfort also stressed that, while these cases may provide a road map for enforcement to legal professionals, employees who have not sought legal counsel are often pressured to sign non-compete agreements “largely in the dark.”  In consideration of the complexity of non-compete agreements and their enforcement, Attorney Belfort added that this is an area of the law that screams out for legislative intervention.

photo non compete 300x224

 

Be sure to read the full article at:  http://masslawyersweekly.com/2017/03/09/company-acquisition-leads-to-non-compete-confusion

ATTORNEY TODD BENNETT QUOTED IN JANUARY 9, 2017 EDITION OF “MASSACHUSETTS LAWYERS WEEKLY”

Posted on: January 11th, 2017 by admin

TB 124x150

Attorney Todd Bennett was quoted in the January 9, 2017 edition of “Massachusetts Lawyers Weekly.”  The article entitled, “State Judge rejects federal test on meal break compensability,” concerns the Massachusetts Wage Act and the Massachusetts Overtime law.

In the underlying case, a group of security guards brought suit against their employer for failing to pay them for meal breaks, and for failing to pay them overtime.  The class of employees claimed that because during their meal breaks they were required to remain on site, in uniform, and respond to their radios, they should get paid during these breaks.  The Suffolk Superior Court (Business Litigation Session) reviewed whether or not it should apply a) the “Predominant test,” or b) the “Relief from All Duties Test” in deciding upon the employer’s motion to dismiss and to decertify the class action.  Essentially, the Predominant test asks whether or not an employee’s meal break time is spent predominantly for the benefit of the employer or the employee.  The “Relief from All Duties Test” asks whether or not an employee is relieved from all of her or his duties during the break.  In a favorable ruling for the employees, the Court applied the “Relief from Duties Test” in denying the employer’s motion to dismiss and to decertify the class.   Attorney Bennett was asked to comment on the outcome of the case, where he provided insight to the Court’s ruling.  The full article can be viewed at the following link: http://masslawyersweekly.com/2017/01/05/state-judge-rejects-federal-test-on-meal-break-compensability/

Attorney McIlvaine Speaks On Developments In Discrimination Law At Massachusetts Employment Lawyer Association

Posted on: December 14th, 2016 by admin

wwa Andy 1 117x150On October 27, 2016, Bennett & Belfort, P.C. attorney Andrew McIlvaine served as an invited panel speaker at the Massachusetts Employment Lawyer Association.  He spoke on developments in the law on transgender discrimination in connection with his recent victory on behalf of a transgender client in a case tried before the Massachusetts Commission Against Discrimination (“MCAD”).

Attorney McIlvaine discussed the precedential impact of the Tinker v. Securitas Security Services USA case and he shared practice tips on effectively representing claimants in a Public Hearing at the MCAD.  The Tinker case involved a managerial supervisor’s ridicule of a transgendered subordinate and his refusal to respect an employee’s request for gender appropriate pronouns.  Mr. McIlvaine emphasized that Tinker is an important result because it stands for the proposition that such misconduct can indeed rise to the level of actionable employment discrimination.  The emotional distress damages award in the Tinker case, $50,000, is one of the larger “garden variety” emotional distress damages awarded in a case tried at the MCAD.  The MCAD also assessed statutory interest and awarded Mr. Tinker reimbursement of virtually all of his attorneys’ fees.

Should you have any questions on the forefront of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.