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Four B&B attorneys honored with “Super Lawyers” distinction for 2018

Posted on: November 6th, 2018 by admin

 

 

We are proud to announce that Thomas Reuters / “Super Lawyers” has listed Bennett & Belfort P.C. Partners, David E. Belfort and Todd J. Bennett, as 2018 New England Super Lawyers; and Partner Eric R. LeBlanc and Senior Associate Michaela C. May as Rising Stars.

Attorney Belfort was selected as a “Top 100” attorney and in the area of Employment Litigation: Plaintiff, and Attorney Bennett was selected as a “Super Lawyer” in the area of Business Litigation.  Mr. LeBlanc was selected as a “Rising Star (Super Lawyers under 40)” in the area of Business Litigation. Ms. May was selected as a “Rising Star” in the area of Employment and Labor.

“Super Lawyers” evaluates 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.

ATTORNEY TODD BENNETT, PARTICIPATES ON FACULTY PANEL AT THE MASSACHUSETTS CONTINUING LEGAL EDUCATION SEMINAR, TRYING CIVIL CASES.

Posted on: October 18th, 2018 by admin

On October 16, 2018, Bennett & Belfort, P.C. Partner, Todd Bennett, shared his trial experience with attendees at the Massachusetts Continuing Legal Education’s Trying Civil Cases, program in Boston.

In this unique program, attendees heard from a panel consisting of: Attorney Bennett, the Honorable Paul D. Wilson, Justice of the Massachusetts Superior Court; Lindsey M. Burke, Director at Kenney & Sams, P.C.; and Warren F. Fitzgerald of Fitzgerald Dispute Resolution LLC. The panel discussed their commentary and experiences relating to a mock trial performed by William J. Dailey, III of Sloan and Walsh LLP and Valerie A. Yarashus of Meehan, Boyle, Black & Bogdanow, P.C.

The program covered everything from pre-trial motions through closing arguments. Attendees also had the opportunity to see how jurors view the case from the jury box, and to vote on the winner.

It was particularly interesting to hear from the Honorable Judge Wilson with respect to how judges expect attorneys to conduct themselves at trial, as well as from different attorneys, some of whom represent companies and some of whom represent individuals.

Attorney Bennett was honored to contribute to this “real time” teaching tool for attorneys just embarking on, or hoping to improve, their civil litigation practices.

NEW NON-COMPETITION LAW MEANS BIG CHANGES FOR EMPLOYERS AND EMPLOYEES

Posted on: September 25th, 2018 by admin

On October 1, 2018, Massachusetts’ new law governing non-competition agreements goes into effect.  This statute is the culmination of many years of efforts to enact some legislative parameters around employment non-competition agreements.  As a result, it reflects a number of trade-offs between pro-employer and pro-employee positions.  The new law also contains some ambiguous provisions that will, no doubt, require interpretation by the courts.

 

Employers and employees should seek specific legal advice regarding the impact of the law in their own circumstances.  However, here are some of the highlights and key provisions to be aware of:

 

  1. This statute covers only non-competition agreements. A non-competition agreement is defined as follows:

 

“an agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended”

 

  1. This law does not impact other restrictive covenants like non-solicitation or non-disclosure agreements. It also does not govern non-competition agreements that are entered into as part of a business sale, or where there is no employment relationship.  Non-competition agreements that are made in connection with the cessation of employment are exempted, as well.

 

  1. The new law only applies to non-competition agreements entered into on or after October 1, 2018.

 

  1. There is now an explicit requirement that consideration be provided in exchange for a non-competition agreement. Employers must provide “garden leave” or “other mutually-agreed upon consideration.”  The garden leave requirement is fifty percent of the employee’s base pay for the duration of the restricted period.  The law does not define “mutually-agreed consideration.”

 

  1. The law contains certain formal requirements, including that agreements be in writing, signed by both the employer and employee, and affirm the employee’s right to consult with counsel.

 

  1. Procedurally, non-competition agreements must be presented at the time of an employment offer or ten days before a new employee’s start date, whichever is earlier. Existing employees may be asked to sign non-competes, but employers must now provide consideration “independent from the continuation of employment.”

 

  1. The law requires that a non-competition agreement be reasonable. It must be no broader than necessary to protect an employer’s trade secrets, confidential information, and goodwill.  It must not exceed one year in duration, and it must be reasonable in geographic scope and in the scope of prohibited activities.

 

  1. Finally, it is important to note that the new law prevents enforcement of non-competition agreements against certain employees, including non-exempt employees, short-term student employees, employees who have been terminated without cause or laid off, and employees who are 18 years old or younger.

 

This is merely a general overview and is not a substitute for legal advice regarding any particular situation.  This new non-competition statute was a long time coming, and it is sure to present many novel issues for employers and employees.  Anyone with questions about how this law affects them should consult with qualified employment counsel.

 

“#METOO” BRINGS SURGE IN SEXUAL HARASSMENT COMPLAINTS

Posted on: June 6th, 2018 by admin

Governor Charlie Baker recently signed an emergency measure granting $250,000 of new funding to the Massachusetts Commission Against Discrimination (“MCAD”).  This action was taken in response to a greater influx of complaints to the agency, likely spurred by the growing “#metoo movement.”

The MCAD, which is similar to the federal Equal Employment Opportunity Commission (“EEOC”), investigates complaints of discrimination including, but not limited to, discrimination in the context of employment, housing and public accommodations.  The “#metoo movement” has raised public awareness of conduct that may constitute sexual harassment in the workplace and changed public opinion about the acceptability of such conduct.  In large part, social media has contributed to the heightened recognition of sexual harassment (which is a form of discrimination) and many other types of discrimination.  As the public discourse grows, it is ever more widely understood that both explicit and implicit biases in the workplace can and do operate to the detriment of women, employees of color, and other persons belonging to groups subject to protection under current law.

In reviewing an employment discrimination complaint, two things that an MCAD/EEOC investigator will likely request are a copy of the employer’s personnel manual, and a record of any investigation the employer might have conducted concerning the alleged discrimination. With this in mind, all employers should thoroughly review their handbooks and discrimination policies and revise them, if necessary, to comport with current law.  Specifically, employers should be sure to have clear, contemporary policies and procedures that:

  • Protect employees from discrimination in the first place, by providing administrators and employees at all levels with guidance and training on what type of speech or conduct might constitute sexual harassment, and the importance of refraining from such harassment;

 

  • Help employees feel safe when complaining of discrimination, by emphasizing the right to report such conduct, providing reassurance that there will be no adverse consequences (i.e. “retaliation”) as a result of bringing a complaint, and offering, when possible, multiple avenues to report discrimination;

 

  • Take complaints seriously, by conducting an impartial investigation, without preconception, both to ensure that any harassment is unearthed when it occurs and to limit employer liability if claims are ultimately unsupported; and

 

  • Stop harassment promptly and effectively by taking appropriate actions, up to and including termination of the harasser’s employment.

Additionally, employers should give careful thought to whether or not they investigate a sexual harassment or discrimination complaint internally (by Human Resources or in house counsel), or externally (by an outside party, which is usually an attorney who focuses in these types of investigations).

Also, employers should strictly follow their anti-discrimination/anti-harassment procedures — in all instances, regardless of the alleged harasser’s rank, prestige or money-generating value to the business enterprise.

What the New Massachusetts Equal Pay Act Will Do to Address the Wage Gap, What It Means for Women, and How Women Can Use This Law in Their Favor

Posted on: March 30th, 2018 by admin

 

 

At First Glance

On July 23, 2016, the Massachusetts Legislature passed the Act to Establish Pay Equity (the “Equal Pay Act”), M.G.L. c.149, Section 105A, which is to take effect on July 1, 2018..

While the terms “equal” and “pay equity” come up frequently in discussions of the Equal Pay Act, the new law will not mandate that wages between women and their male coworkers be equal. However, it will increase transparency concerning wages, and make remedies available to women who are paid less than their male coworkers for “comparable work.”

The Equal Pay Act forces employers to evaluate their pay practices to ensure there is no discrimination in wages or salary on the basis of gender alone.  Further, the law provides employees with the freedom to discuss wages and salary amongst themselves, giving female employees more access to information about how their pay rates compare with those of male employees doing “comparable work.”

What is “Comparable Work”?

Employees who do “comparable work” are not simply employees with identical job titles or job descriptions.  Under the Equal Pay Act, two employees are said to perform “comparable work” if their jobs “require[s] substantially similar skill, effort and responsibility and [are] performed under similar working conditions.”

What Employers CANNOT Do under the Equal Pay Act

The Equal Pay Act states:  “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The Act also makes clear that if an employer is violating the Equal Pay Act by, for instance, paying female employees $20 per hour and male employees $22 per hour for comparable work, the employer may not lower everyone’s wages to $19 per hour just to become compliant with the law.

What Employers CAN Do under the Equal Pay Act

There are still six instances in which employers can legally pay different wages and/or salaries to people doing comparable work. Employers are NOT considered to be in violation of the Equal Pay Act if differences in pay are based on:

  1. Seniority with the employer, as long as seniority is not reduced by any time an employee spends on leave for a pregnancy-related condition or on parental, family or medical leave;
  2. A merit system;
  3. Certain productivity benchmarks;
  4. Differences in the geographic locations where the jobs are performed;
  5. Differences in employees’ education, training, or experience, if “reasonably related to the particular job in question”; or
  6. Differences in regularly required, necessary travel.

The Impact of the Equal Pay Act: Before the Job and on the Job

Before you get a job, an employer cannot request your wage or salary history from you or from your current or former employer, nor can an employer require that your prior wage or salary history meet certain criteria. But if you volunteer such information to an employer that is considering hiring you, the employer may:

  1. Confirm your prior wages, or permit you to confirm prior wages or salary; or
  2. Seek or confirm your wage or salary history after an offer of employment with compensation has been negotiated and made to you, the prospective employee.

Once you start work and are on the job, an employer cannot require that, to keep your job, you refrain from asking other employees about their wages or from sharing information about your own wages.

Importantly, an employer cannot fire or otherwise retaliate against you if you challenge anything the employer does that is in violation of the Equal Pay Act; mention an intention to complain about such conduct; participate in any investigation or proceeding concerning a violation of the Equal Pay Act; disclose your own wages or salary; or discuss other employees’ wages or salaries with them.

What Do You Do If Your Employer Is Violating the Equal Pay Act?

You may take legal action against your employer for any violation of the Equal Pay Act. Such an action must be taken within three years after the date of the alleged violation.

What Are the Possible Results of Taking Legal Action Against Your Employer for an Equal Pay Act Violation?

If your employer is found to have violated the Equal Pay Act, the employer may be required to compensate you for unpaid wages, plus an equal amount of liquidated damages (an amount of damages that is calculable by the Court). In addition to any judgment obtained, you would be entitled to reasonable attorneys’ fees and costs in connection with your action, to be paid by the employer.

Employment Agreements and Lack of Intent to Discriminate are NOT Defenses.

If you are a female employee receiving less pay than a male colleague for comparable work (and none of the exceptions described above apply), this is a violation of the Equal Pay Act even if your employer insists it didn’t mean to discriminate; whether the employer meant to or not is irrelevant under the law. Furthermore, even if you signed a contract when you were hired agreeing to a wage that was less than what the Act legally entitled you to, your employer cannot use the agreement as a way to avoid legal responsibility for the violation. Similarly, if you were paid less at a previous job than the Equal Pay Act now entitles you to, this cannot be used by your current employer as a justification for illegally underpaying you.

An Employer’s Line of Defense: The “Self-Evaluation”

An employer who is found to have violated the Equal Pay Act has a potentially valid defense if it can show (a) that it has conducted a “Self Evaluation” of its own pay practices within three years of the violation, and (b) that it has made “reasonable progress… towards eliminating the wage differentials based on gender for comparable work in accordance with that evaluation.” While the Attorney General may, in the future, establish specific requirements for the detail and scope of an employer’s Self Evaluation, there are no such requirements in the current version of the Equal Pay Act. It is up to the judge or other arbiter evaluating a case to determine whether the employer’s evaluation was sufficient.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for discrimination and retaliation under the Family Medical Leave Act (FMLA (29 U.S.C. sec. 2601 et seq.)), The Americans with Disabilities Act (ADA) and under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

EMPLOYER ALERT: NEW PREGNANT WORKER LAW STARTS APRIL 1ST

Posted on: January 25th, 2018 by admin

pregnant women

On April 1, 2018, An Act Establishing the Massachusetts Pregnant Workers Fairness Act, (“PWFA”) goes into effect.  All employers in Massachusetts should be aware of this law.  The PWFA extends the protections of Massachusetts anti-discrimination law (Massachusetts General Laws, Chapter 151B) to pregnant workers within the Commonwealth, and grants additional safeguards for pregnant workers seeking workplace accommodations relating to their pregnancy. The PWFA specifically extends coverage for pregnancy, and related conditions, including lactation.

Essentially, the PWFA applies the reasonable accommodation standards that are used in disability cases to pregnancy, and requires employers to engage in an interactive process and to provide employees reasonable accommodations, unless doing so would impose an undue hardship on the employer. The PWFA includes a non-exhaustive list of specific accommodations that may be available to pregnant employees, including:

(1)   Time off to recover from childbirth (with or without pay);

(2)   More frequent or longer breaks (with or without pay);

(3)   Temporary transfer to a less strenuous/hazardous position;

(4)   Job restructuring;

(5)   Light duty;

(6)   Private non-bathroom space for expressing breast milk;

(7)   Assistance with manual labor; or

(8)   Modified work schedules.

The PWFA requires the need to engage in an interactive process, which is essentially a dialogue between the employee and employer concerning possible accommodations that may be available.

The PWFA also makes it illegal for an employer to: (1) retaliate against pregnant workers who seek accommodations, (2) refuse to hire an individual who may need an accommodation  relating to pregnancy or the need to express breast milk; (3) require a pregnant or lactating employee to accept an accommodation that does not enable them to perform the essential functions of their job; (4) require a pregnant or lactating employee to take a leave of absence, when other accommodations may be available; and (5) refuse to hire an individual because of her pregnancy ore related condition.

Importantly, all employers covered by the act are required to provide written notification to existing employees of their rights under the PWFA on or before April 1, 2018, and new employees at the start of their employment.

As with other violations of Chapter 151B, employers who fail to comply with the provisions set forth in the PWFA may be liable for back pay, front pay, emotional distress, punitive damages, and attorneys’ fees and costs.

 

 

Bennett & Belfort secures $1,235,000 Jury Verdict v MWRA

Posted on: January 18th, 2018 by admin

2013-david-b-photo-150x150A Suffolk County jury today awarded $1,235,000 to Richard DaPrato against the Massachusetts Water Resources Authority (MWRA). In reaching today’s verdict, the jury concluded that the MWRA deliberately retaliated against Mr. DaPrato  after 11 years of unblemished service by firing him for taking medical leave for surgery, and for requesting future leave.

Mr. DaPrato was represented by David E. Belfort of Bennett & Belfort PC of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. The jury strongly rejected the Authority’s argument that Mr. Daprato violated the public trust.  Instead, the jury found that the MWRA, a public entity, violated Mr. DaPrato’s rights to medical leave under both the Family Medical Leave Act and the Massachusetts Fair Employment Practices Act (M.G.L. 151B)

The Jury awarded Mr. Daprato $320,000 in lost pay damages, including his future pension losses, in addition to $200,000 in emotional distress damages.  The Jury issued punitive damages to deter future outrageous conduct by the MWRA in an amount of $715,000.

David Belfort said, “This decision affirms the rights of employees to request and take legally protected medical leave without being subjected to adverse action.”

The final judgment, which has not yet been entered, will also include pre-judgment interest and a petition for Mr. DaPrato’s attorneys’ fees is forthcoming.  (See Jury Verdict Slip Below)

DaPrato Verdict 1.18.18_Page_1DaPrato Verdict 1.18.18_Page_2

 

Partner, Eric LeBlanc, quoted in Massachusetts Lawyers Weekly Article Regarding an Employee’s Successful Post-Termination Claim of Workplace Retaliation

Posted on: January 11th, 2018 by admin

wwa_eric-117x150Massachusetts Lawyers Weekly sought commentary from Bennett & Belfort partner, Eric LeBlanc, in its article on a recent U.S. Bankruptcy Court decision concerning a contract worker’s claim against her former employer’s Chapter 11 bankruptcy estate for severance pay.  (“At-will worker can seek severance against bankruptcy estate: Company’s failure to offer benefits deemed retaliatory,” Mass. Lawyers Weekly, December 21, 2017.)  Dr. Christine Briggs, while an at-will employee of Genesys Research Institute, Inc., was one of a number of workers who filed whistleblower complaints against the company for alleged misuse of restricted funds.  Although an employer is not required to offer severance pay when laying off an at-will employee, Dr. Briggs discovered that when Genesys terminated at-will employees in a series of layoffs prior to filing for bankruptcy, it had systematically offered severance to those who had not lodged whistleblower complaints but failed to offer severance to those who had made complaints.  In the case, In Re: Genesys Research Institute, Inc., Justice Joan Feeney concluded that the employer’s conduct was retaliatory, and thus Dr. Briggs, although an at-will employee, was entitled to claim severance pay.

Attorney LeBlanc remarked that the Judge’s decision is significant because the court sustained a claim concerning an employer’s retaliatory conduct that occurred after the employee’s termination.  “There are mitigating factors in this case because it was a bankruptcy decision with a different burden-shifting, and the trustee made limited attempts to refute the claim,” Attorney LeBlanc told Lawyers Weekly. “But it could still be applicable in assisting plaintiffs in getting over an initial hurdle regarding a potential retaliatory action that occurs post-termination… Put more simply, you can use post-termination employer behavior to potentially prove either discrimination or retaliatory animus.”

From a common-sense, layperson’s perspective, it goes without saying that retaliation and discrimination by any person or entity against another can post-date the technical termination of the relationship between perpetrator and victim.  The case law in this regard is, however, a work in progress.

READ BEFORE YOU SIGN: DAVID E. BELFORT, QUOTED ON FIDUCIARY DUTY CLAIM INVOLVING AN ALLEGED ILLICIT TRANSFER OF SHARES

Posted on: January 3rd, 2018 by admin

2013-david-b-photo-150x150

We are pleased to announce that Bennett and Belfort, P.C. managing partner, David E. Belfort, was quoted in the December 21, 2017 issue of Massachusetts Lawyers Weekly in a cover page article entitled, “Breach-of-fiduciary claim vs. accountant allowed.” http://masslawyersweekly.com/2017/12/21/breach-of-fiduciary-duty-claim-vs-accountant-allowed/. The article discusses a Suffolk Superior Court decision coming out of the Business Litigation Session authored by Hon. Judge Leibensperger on a Motion To Dismiss.  The Court held that a lawsuit can proceed for breach of fiduciary duty where an accountant allegedly obtained an equity interest in the investment fund he managed through written instruments he submitted to the plaintiffs (his bosses) without fully disclosing that the documents transferred equity to the Defendant.  Interestingly, this purported ownership transfer took place just a short time before the Defendant left the company’s employ, and the transfer documents were prepared by a junior level attorney at a law firm that represented the company.

Attorney Belfort addressed the evidentiary challenges which remained for the plaintiff as the case continues. “Fiduciary duty claims still require that you have actual evidence of malfeasance in some way or a material omission,” Attorney Belfort said. “In this case, if they are able to prove that the defendant deliberately misled them or concealed key information, then they have a chance. If they can’t, they’re going to have a tough time getting through summary judgment.”   The Plaintiffs admit they signed two documents relative to the equity transfer at issue but say they did not fully read the documents.  Plaintiffs claim that the Defendant, as a senior executive at the firm, had a fiduciary duty beyond presenting the documents to them for signature, including to inform them about the equity transfer it contained, which was done – they argue – without Plaintiffs’ knowledge and approval.  This, they claim, is sufficient to show a breach of fiduciary duty under Massachusetts law and at this early stage according to Judge Leibensperger – they were correct.